The Copy/South Dossier Issues in the economics, politics, and ideology of copyright in the global South

THE COPY/SOUTH DOSSIER

Issues in the economics, politics, and
ideology of copyright in the global South

Edited by

Alan Story

Colin Daren

and Debora Halbert

Researched and published by

The Copy/South Research Group

May 2006

Published by the Copy / South Research Group

Website: http://www.copysouth.org

E-mail address: contact@copysouth.org

ISBN: 978-0-9553140-0-1 (downloadable online edition)
978-0-9553140-1-8 (printed edition)

Not restricted by copyright

CONTENTS

SOME INITIAL WORDS 3

INTRODUCTION 7

SECTION 1 - THE GLOBAL INTELLECTUAL PROPERTY SYSTEM IS PRIVATISING

HUMANITY'S COMMON CULTURAL HERITAGE 1 1

2.2 Introduction 11

1.2 How privatisation and monopolisation discourage creativity and invention 13

1.3 Why this tendency is against the interests of creators and society in general 17

1.4 Monopoly ownership and its consequences for artistic expression 20

1.5 Average artists and conglomerates cannot benefit from the same copyright system.... 23
SECTION 2 - THE ECONOMICS OF GLOBAL COPYRIGHT: THE NET CAPITAL
FLOW FROM THE GLOBAL PERIPHERY TO THE CENTRE 29

2.1 Introduction 29

2.2 Calculating copyright-related capital flows from the global periphery to the centre ....31

2.3 From TRIPS to TRAP: Free Trade Agreements and copyright 34

2.4 Reprographic collecting societies and their projected growth in the South 41

2.5 How much of this capital flow is related to copyright? 46

2.6 How 'national treatment' increases the net outflow of capital from the South 48

SECTION 3 - PRIVATISING THE PUBLIC DOMAIN AND IMPOSING

WESTERN/ NORTHERN ASSUMPTIONS ABOUT CULTURAL PRODUCTION 52

3.1 Introduction 52

3.2 The basic values and ideology of copyright 53

3.3 The differing traditions of cultural creation in the South 56

3.4 Culture and creativity in the Arab countries 61

3.5 Traditional/indigenous knowledge and copyright: a complex issue 65

3.6 The criminalisation of copying in the South and the 'piracy' question 71

3.7 The privatisation of common culture proceeds in the South, at a quickening pace 76

3.8 Western cultural conglomerates and the global marketing of culture from the global
South 79

3.9 The role of the World Intellectual Property Organisation in spreading the copyright
system and its narratives to countries of the South 80

SECTION 4 - SERIOUS AND DAMAGING BARRIERS TO THE USE OF
COPYRIGHTED MATERIALS IN COUNTRIES OF THE SOUTH 89

4.1 Introduction 89

4.2 Extending copyright terms extends privatisation 91

4.3 Distance learners kept from study materials: experiences from Kenya 95

4.4 How copyright hinders librarians in providing services to library users 100

4.5 Copyright laws add to other restrictions on learning in rural South Africa: an October
2005 survey from Mpumalanga 109

4.6 Copyright gets in the way when teachers want to provide student course & study packs
Ill

4.7 An academic from Colombia tries hard to do his research . . . with great difficulty 225

4.8 Using the Internet in the South: a tangled web of copyright toll-gates and "keep out"
messages 226

4.9 Using intellectual property laws to prop up proprietary computer software 229

4.20 The visually impaired in the South: shut out of reading by copyright roadblocks.... 127
4.11 How copyright presumptions trump translation possibilities ... and limit the sharing
of knowledge 233

4.22 Three legal questions related to access 236

4.23 Copyright and cultural domination by the North: a long-standing conflict that is
getting sharper 242

SECTION 5 - RESISTANCE FROM THE SOUTH TO THE GLOBAL COPYRIGHT
SYSTEM 147

5.1 Introduction 247

5.2 A brief history of Southern resistance to copyright's laws and assumptions 148

5.3 National or regional movements opposing TRIPS as interference in their cultural life
254

5.4 Venezuela initiative on the rights of authors 255

5.5 Resisting the privatisation of cultural life 257

5.6 Possible alternatives to copyright in the South 259

5.7 The A2K (Access to Knowledge) treaty group 262

5.8 Free software: a viable and cheaper alternative 264

5.9 The Creative Commons approach 267

5.20 The Canto Livre example from Brazil 270

5.22 Open access journals and open archiving initiatives 272

5.22 Co-ordinating activities across the South 274

5.23 Satire and art as resistance 275

5.24 Co-operation in the South as part of wider intellectual property activism 275

SECTION 6 - CONCLUDING THE DOSSIER . . . AND LOOKING AHEAD 177

6.2 Some closing words 277

6.2 Glossary of fifty copyright terms, phrases, and copyright-related organisations which

are used in the Copy/South Dossier 181

INDEX OF THE C/S DOSSIER 189

SOME INITIAL WORDS.

This dossier is addressed to readers who want to learn more about the global role of
copyright and, in particular, its largely negative role in the global South. In the 190 or
so pages of text that follow, we in the Copy/ South Research Group, who have
researched and debated these issues over the past 12 month, have tried to critically
analyse and assess a wide range of copyright-related issues that impact on the daily
lives (and future lives) of those who live in the global South.

Perhaps the easiest way to explain the aims and objectives of the Copy/ South
Dossier is to state what they are not. . . and to whom it is not addressed. This dossier
is not a policy brief directed mainly at experts in copyright law or specialists in
development economics. It does not contain page after numbing page of dry and
often abstract formulations about the legal, social, political, and economic aspects of
the increasingly contested topic of copyright. Yes, this dossier certainly does discuss
a wide range of policy questions because copyright is a very political question and
existing approaches to knowledge and access can certainly be changed. But it does so
in a manner which, we hope, will bring these questions 'alive', show the direct
human stakes of the many debates, and make the issues accessible to those who want
to go beyond the platitudes, half-truths, and serious distortions that often plague
discussions of this topic.

Nor is the dossier primarily addressed to policy makers (such as bureaucrats at the
World Intellectual Property Organisation in Geneva), or to executives of large multi-
national corporations (the Rupert Murdoch's and Bill Gates' of this world) or to those
who are working, often with huge financial resources, to uphold and perpetuate the
current global and domestic copyright regimes. These people, their companies, and
their organisations are fully aware of many of the comments and criticisms made in
this dossier, admittedly often put forward previously and currently in a more partial
and tentative way. Some of the same criticisms included here were made, for
example, in the 1960's by then newly-independent countries in the South during a
period labelled the 'international crisis of copyright'. Others were voiced in 2004 and
2005 as part of the 'development agenda' being led by 13 governments from the
South. But those promoting the current copyright system have not listened or acted.
(In fact, since the 1995 signing of the World Trade Organisation's Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS) 1 they have made these
intellectual property regimes even more restrictive and even more impenetrable
barriers to knowledge access). Instead, the main intended audience is information
'activists', those working at the copyright 'coal face', such as librarians and teachers,
anti-globalisation activists, cultural workers, such as writers and musicians, and
NGOs. We particularly encourage all of you to join in the debate

To be clear, this document is not a manifesto. When you start reading this
publication you will appreciate, almost from page one, that there is not a single point

1 For a definition of important intellectual property-related organisations, laws, and concepts,
see the Glossary found in Part Six at the end of this dossier.

of view being expressed. This is deliberate. Instead of providing a check list or recipe
book for reform or attempting to give all of the answers to some very difficult
questions, it is intended to open up - and re-open in some cases - an often-ignored
debate and to pose what we think are some of the more pressing questions for
further research and action. For example, we think it more important to figure out
ways that illiterate people can read their first book - something that current
copyright laws often restrict (though they are certainly not the only barrier) - than
how to protect e-books. We are asking, as well, if the purpose of copyright law is to
provide copyright protection to cake recipes, as has recently been tried in Italy. 2 And
for us, cultural diversity is far more important than the promotion of an increasingly
globalised (and copyright-protected) single culture. The emphasis in this dossier is
more on critique and expose rather than on solutions, though we also examine some
alternatives and reforms in Section Five. This is, as the dictionary defines the word
'dossier', a "collection or bundle of papers giving detailed information about a
particular... subject." And while we hope that all of the more than 50 articles
included here are provocative and well-researched, they are not the final word on our
still much under-researched subject: copyright in countries of the global South, a
term we prefer to the more commonly-used phrase 'developing countries.' (We
prefer it because, many countries in the South in Asia, Africa, and South America are
not actually developing and we reject the notion that travelling along the same
development path previously travelled by 'developed countries' is the only way
forward for more than three-quarters of the world's population).

Two points require clarification. Most studies on copyright focus primarily on the
situation in the United States, Europe, and other rich countries. By focusing primarily
on conditions in the South, we do not mean to imply that many of the conditions and
problems we highlight are unique to the South; many of the same conditions also
prevail in rich Northern (Western) countries. Yet, there are some particular problems
in the South and some problems that bite with particular ferocity here. And if
Southern manifestations — and possible solutions - are not specifically highlighted,
they are often forgotten about entirely or passed over in a sentence or two. It is often
assumed, wrongly, that the access situation in Boston or Berlin or Brisbane is the
same as that being faced in Bogota or Beirut or Bangalore, let alone in their rural
hinterlands. Second, we also recognise that 'the South' is not a homogenous area
either and again, we do not intend to imply that the copyright situation across the
three continents and the more than 150 countries of the global South is similar.

As you start to read this text, you may ask: how did the Copy/ South dossier come
into being? A first and draft version was prepared for a four-day intensive workshop
held in August 2005 at the University of Kent in the United Kingdom and organised
by the Copy/South Research Group. Of the 22 people who attended this 'by
invitation only' session, more than 15 were from countries of the South. (See the list
of those attending below). At this lively and informative session, the draft dossier
was subjected to some sharp criticisms; numerous suggestions for improvement
were made, and additional articles and research angles proposed. A second version
was circulated internally in January 2006. Further changes were made and this third
version is the public version. It is a work of North/ South collaboration, a product of
the sharing of knowledge.

2 Barbara McMahon/ Italians protect panettone by 'copyrighting' the recipe', The Guardian
(London), 6 December 6, 2005.

The editors of this dossier are: Alan Story (United Kingdom), Colin Darch (South
Africa), and Debora Halbert (United States).

Those who have contributed to this dossier (most of whom attended the C/S
workshop) are: Adam Mannan (United Kingdom), Akalemwa Ngenda (Zambia),
Beatriz Busaniche (Argentina), Denise Nicholson (South Africa), Federico Heinz
(Argentina), Jennifer de Beer (South Africa), Norah Mugambi (Kenya), Joost Smiers
(The Netherlands), Jose Antonio Torres Reyes (Mexico), Juan Publio Triana Cordovi
(Cuba), Lawrence Liang (India ), Maud Stephan (Lebanon), Roberto Verzola (The
Philippines), Ronaldo Lemos (Brazil), Shishir Kumar Jha (India), Zapopan Martin
Muela-Meza (Mexico), Carlos Affonso Pereira de Souza (Brazil), Papa Toumane
Ndiaye (Senegal), Majid Yar (United Kingdom), Teresa Hackett (Ireland), Colin
Darch, Debora Halbert and Alan Story. Special thanks to graphic artists Ulrike
Brueckner and Sebastian Luctgert of Germany for their contributions to the online
and printed version of this dossier. And particular thanks to William Abrams of the
United States who undertook the important job of creating an index for the dossier.

You will notice that the authors and editors of the various sections, articles, and
introductions are not specifically identified. Again this is intentional as the dossier is
the work of many people who have pooled their knowledge and differing
experiences. And it should be emphasised that every person listed above does not
necessarily agree with or endorse all of the contents of the entire dossier.

We wish to thank the following organisations for their financial support of the
Copy/South Research Group: 1) The Open Society Institute, Budapest, Hungary; 2)
HIVOS, The Hague, The Netherlands; 3) The Research Fund of Kent Law School,
Canterbury, Kent UK.

If you wish to contact the C/S group for any reason - for example, to make criticisms
of the dossier, to give your own examples, to join in the future research effort - our e-
mail address is: contact@copysouth org

This dossier is not restricted by copyright. Feel free to distribute it, to photocopy it, to
translate it into other languages, to change its format, to link to the C/S website from
your own website, or to quote from it in your own research, writing, or activism. We
request only that you state where (the Copy/South dossier) the material initially
appeared.

THE COPY/SOUTH RESEARCH GROUP May 2006

To receive one or more copies (maximum five) of this dossier in the

post, contact the Copy/South group at: contact@copysouth.org

It is available for free either as a printed booklet or as a CD.

Distribution is subject to availability. Provide your complete postal

address, and please be patient as receipt will likely take at least one

month.

INTRODUCTION

To introduce the Copy/ South project and this dossier, one must first introduce the
concept of copyright. Copyright has a long history emerging from 18th century
English law. Generally speaking, it is a legal regime that provides a limited form of
monopoly protection for written and creative works fixed in a tangible (material)
form. The owner of the copyright is given the exclusive or sole right to do a number of
things with that work such as the following: a) to make copies of the work, for
example, by photocopying it, b) to perform the work, such as a play, c) to translate
the work into another language, d) to display it publicly, such as using a photograph
in a magazine. And to break these property-like restrictions is copyright
infringement. While originally focused upon written work, copyright has been
extended and expanded over the years to include maps, artwork, music,
phonographic records (and later audio tapes and now CDs), photographs, and, most
recently, computer software and data bases. Copyright protects the specific
expression of an idea, not the idea itself, and the law - in some, though not all,
countries - allows limited 'fair use' or 'fair dealing' by users of works in which the
copyright is owned or held by others. Today, the law protects (and restricts) a
copyrighted work for the life of the author plus fifty years in some countries or plus
seventy years in others - notably in Europe and the United States where most
copyrighted works are produced - or even longer in a few countries. It is relatively
rare, however, for an author to retain rights to creative works; usually these rights
are transferred (the legal word is 'assigned') to a publisher or record producer in
exchange for publication, royalties or a flat fee. (In the case of employees who create
copyrighted works, their employer owns the copyright in most cases.) The 1960's UK
rock group The Beatles did not, for example, own copyright in the songs they wrote,
performed, and recorded.

While originating in 18th century European law, copyright law has become
international in scope. Yet, in many ways, copyright has always been an international
issue. When copyright owners (as distinct from authors) in the 18th and 19th
centuries were demanding protection for their work, the threat to copyright control
often came from booksellers publishing cheap editions for a foreign market or
importing cheap editions from abroad to compete in the domestic market. It is now
conventional wisdom to acknowledge that the United States was one of the worst
copyright 'pirates' in the 19th century when it was a developing country. (The US
government refused to extend copyright protection to foreign works, thereby
creating a domestic market in cheap reprints of popular titles.) The creation and
adoption of the European-' inspired' Berne Convention in 1886, which remains the
leading international copyright agreement, further illustrates the importance of
international protection of copyright from the 19th century forward.

It is also conventional wisdom that the 'information age' has fundamentally
transformed the scope and intensity of international copyright battles. While the
history of copyright is the history of copyright expansion, computer technology has
radically altered the balance between copyright owners and knowledge users. First,
the ease with which digital material can be copied and distributed through 'pirate'

channels has increased dramatically. Second, and perhaps more importantly,
everyday consumers and users of copyrighted works are now defined as 'pirates'
and 'thieves' as they go about sharing information, music, entertainment, and other
materials found on the Internet. (It does need to be emphasised, however, that many
parts of the global South - and many who live here - are not 'plugged into' the
Internet as they lack computers, reliable phone lines, and electrical connectivity.)
These two trends help highlight the stark differences between a culture of sharing
and a culture of monopolisation and privatisation. As long-time Philippines activist
Roberto Verzola explained at the Copy/South workshop (mentioned above in 'Some
initial words...') there are two main competing value systems in the world and, in
the current era, "the value system of monopolisation, corporatisation, and
privatisation is being imposed on what I think is a better system, a system of
sharing." As the economy continues to globalise and as we become further
dependent upon computer technology and need information exchange ever more
urgently, copyright and its assumptions have moved from a marginal place in
economic and development theory to a relatively central place.

The fact that copyright owners, represented by the software, music, movie, and
publishing industries, have been lobbying for stricter copyright control is not new.
But the past few decades have been marked by a remarkable expansion of copyright
laws. Perhaps the most significant victories for these copyright owners was the
successful negotiation and establishment of the Agreement on Trade-Related Aspects
of Intellectual Property Agreement (TRIPS), which all countries seeking to become
part of the World Trade Organization were and are required to sign. When TRIPS
was negotiated and came into force in 1995, it did so with considerable resistance
from the global South, led by India and Brazil. From the start, it was clear to many
that the TRIPS Agreement would primarily benefit already developed Northern
countries far more than those in the global South. It is the multinationals of the North
who already own the overwhelming percentage of global intellectual property rights
(copyright, patents, trade marks and other types); the creation, expansion, and
stricter enforcement of property rights, including intellectual property rights,
overwhelmingly benefits those already owning property. Moreover, given that
intellectual property rights extend far into the future - for example, some copyright
works created in 2006 will still be under copyright in 2106 and will still be bringing
in revenue - agreements such as TRIPS serve to reinforce patterns of wealth and
inequality that will, if we do not create a counter movement, be a burden on the
backs of several future generations, including those in the South.

Ten years have passed since TRIPS became reality. Copyright has only increased in
importance over the past ten years and the pressure to enact and enforce laws as
tough as or tougher than the United States continues to mount. In fact, the US was
not satisfied with the level of protection in the TRIPS agreement and has continued
bilateral negotiations with many countries on all other continents to create what has
come to be called 'TRIPS plus' treaties. The more common name for such treaties is
'free trade agreements'; they follow a hypocritical (and contradictory) agenda of
purporting to promote 'freer trade' in monopolised goods such as patented
pharmaceuticals and Hollywood blockbusters. We ask, "how much 'free trade' in
Nigerian or Cuban or Chinese films occurs within the US or Europe?" So it will be
argued here that TRIPS and its component parts, such as the Berne Convention, have
simply reproduced the types of economic inequalities associated with the earliest
stages of colonialism and imperialism.

This dossier seeks to provide backing to the argument that copyright laws imposed
upon the global South have had, and will continue to have, a negative impact. The
document is designed to provide an introductory and broad analysis of the issues
associated with copyright for the global South. It also seeks to highlight some of the
controversies surrounding copyright law. As mentioned in the preface, the global
South does not have a monolithic approach to copyright. What we seek to do in the
following pages is provide a critical assessment of copyright and its impact on the
global South, keeping the issues of both access to knowledge and the protection of
local cultures and cultural diversity at the forefront.

The dossier is divided into five main sections, which we called 'research
propositions' when we began this research in 2004. The first section/ proposition
looks generally at the impact of copyright on culture and seeks to highlight the
unstated assumptions behind the copyright paradigm or model. The argument in
this section is that the privatisation of culture through copyright is not beneficial.
Rather, such privatisation fundamentally transforms our relationship to culture and
centralises its ownership in the hands of corporate powers, often not even associated
with the local culture. We address issues related to privatisation, the threat of
'propertisation' to the creative process, and the role of corporate culture in the
ownership of copyrights.

The second section looks at the political economy of copyright and examines the
issue from an economic perspective. Here, we argue that the global South is not the
economic beneficiary of international copyright laws. Rather, the countries where
more than three quarters of the world's population resides are expected to join,
without complaint or criticism, a global economy which, on the one hand, offers
increased protection to Northern-owned copyrights in the global South and hence
greater South-North revenue flows, while, on the other hand, continues to siphon
'marketable' materials from the global South for the profit of corporations in the
global North. In other words, a very unequal exchange. Specifically, we look at
examples of capital flow through collecting societies, the role of free trade
agreements, and the economic effects, in practice, of the concept 'national treatment.'

The third section looks specifically at the impact of the copyright system, as a
western construction, on the public domain and on many long-standing cultural
practices and forms across the South. In recent years, the concept of the public
domain has received theoretical attention and has taken on new meaning in a world
suffering from increased privatisation. This section develops an argument regarding
the benefits of the public domain, especially in the context of regions and countries
such as the Arab world, Indonesia, or the Indian sub-continent where important
cultural forms such as music and story-telling have very different traditions from
those existing in France or Germany. Of specific interest here are the questions of so-
called copyright 'piracy' and the relationship between the public domain and what is
called 'traditional knowledge' and the ways in which copyright issues impact on
indigenous communities.

The fourth section seeks to develop the argument that the barriers created by
copyright are damaging to access to knowledge by the global South. While the global
North remains intent upon protecting what it sees as its 'private property', those in
the global South continue to seek access to basic knowledge in order to improve the

conditions of those living in poverty and sub-standard conditions. This section
investigates barriers established to limit access to knowledge by a range of people in
a range of situations: students, teachers, the visually impaired, the illiterate, the
general public, in libraries, in universities, on the Internet, on their computers. And
we also ask the question: precisely what 'knowledge' should be available?

The final section of the dossier looks to the resistance that is emerging against
copyright. Resistance to copyright by the global South was an integral part of the
TRIPS negotiations. Despite this resistance, the global South was unsuccessful in
substantially changing TRIPS. However, in the ten years since TRIPS was signed, the
issues and contradictions of copyright (and patents, which are not the subject of this
dossier) have taken on a higher profile and people throughout the global South (and
the global North) have begun to actively resist the imposition of strong copyright
laws as well as begin to reconfigure the law - and appropriate it for their own
purposes.

We believe that a focus on the global South has been too long ignored in discussions
of copyright; this dossier seeks to remedy this situation. The argument made by
developed countries is that copyright is supposedly good for their economies so it
must be good for everyone in the world. However, a 'one-size fits all' approach is
detrimental to many. It is important to recognize that many countries in the global
South face poverty so severe that copyright protection is (or should be) far from an
important item on their political agendas. Rather, literacy and education, poverty
reduction, access to clean water and affordable food, and a variety of other needs are
all more important than protecting the TRIPS-established property rights of foreign
companies. At the same time, the dossier seeks to remain sensitive to the differences
between countries in the global South, where some countries have fundamentally
different priorities than others. For example, while Argentina has a wonderfully
vibrant free software movement seeking to extend access to information technology
via free software, most people in Kenya do not even have access to a phone and
Internet access is well beyond range. Or, as several participants at the Copy/ South
workshop from Brazil noted, the technology revolution in Brazil will not be based
upon computers (desktops or laptops), but on cell phones where everything from
text messages to MP3s are exchanged. This leapfrogging of technological services is
in stark contrast to the situation on the ground in Zambia where almost 2/3 of the
state's budget is funded by foreign sources. Thus, the similarities as well as the
differences between the many countries from the global South must be recognized.

Ultimately, this dossier seeks to provide an avenue into the serious discussions that
must be held regarding copyright and development at the global level. We
consistently look at copyright as a western idea being imposed on the global South.
However, it is also time to look at the innovation coming from the global South as a
model for transforming all cultures. Furthermore, it is time to develop deeper and
stronger connections between activists in the global North interested in critiquing
copyright laws and those in the global South seeking the same goals. The
Copy/ South project and this dossier are part of what we hope will become a larger
and more complex network of actors. We cannot promise and do not deliver a
unified theory or single solution. Rather, what we seek to do is place a light on the
global South and the problems copyright has wrought in order to not simply critique
the system, but also to open the doors towards a transformation of the system at a
global level.

10

SECTION 1 -THE GLOBAL INTELLECTUAL
PROPERTY SYSTEM IS PRIVATISING HUMANITY'S
COMMON CULTURAL HERITAGE

1.1 Introduction

Much of the dominant discourse around intellectual property (IP) - whether legal or
sociological - starts from some largely unexamined assumptions. These are first that
both the concept and the system are 'good things' socially and juridically, second
that there is no alternative, and third that the system has worked well and continues
to work well in pretty much the same way regardless of the specifics of time and
place - in other words, through history and all over the world. There is, however,
also a venerable and well-developed tradition of critical thinking about intellectual
property - especially copyright and patents - which argues that as a system for
rewarding creators it is inefficient, as an economic mechanism it amounts to a
restraint on free trade, and over time it has increasingly placed more and more
control over recorded human knowledge in fewer and fewer corporate hands. This is
the dissident intellectual tradition from which the Copy/ South project has emerged,
and it is one that is increasingly gathering support across the political spectrum.

The Copy/ South Project believes that, contrary to the tenor of the dominant
copyright and IP discourse, it can quite easily and convincingly be shown that the
global IP system, and specifically copyright, tends through privatisation to
concentrate control of humanity's common cultural heritage in the hands of a
shrinking number of private owners, and that this tendency has a demonstrably
negative effect on the well-being of the majority of the world's poor people, most of
whom live in the global South.

This was the first proposition that the Copy/ South Project began to investigate. We
believe that the tendency to privatisation - the workings of which we will describe in
this section - is pernicious for several reasons. We intend to focus on two main areas
of creative discourse, both of them fundamental to social and economic
development. These are cultural diversity and access to teaching and educational
materials (including scholarly communication). It is intuitively clear that private
control of either content or the channels of communication through which content is
delivered, in either of these areas, is likely to result in short-term market forces
becoming determinant in deciding what is preserved, taught, delivered or
developed, and what is discarded, dumped or abandoned. This is a problem for
several of the reasons discussed in the following sections.

The Enlightenment copyright discourse that dates back to the eighteenth century
Statute of Anne in the United Kingdom and to the United States Constitution
implicitly proposes an idealised balance between the rights-holders' limited-term
monopoly and the public benefit of unhindered access to the scientific record and the
products of cultural traditions. But to accept this idealism at face value is to ignore
two key problems. First, most rights are now and have always been held, not by the

11

creators themselves, but by vendors in the form of publishers and later media
corporations. 3 Second, as the sale of educational and cultural content has increasingly
shifted from the delivery of physical objects - books, records, pictures - to the
provision of access to digital objects, two contradictory tendencies have emerged. It
has become technologically possible for the vendor to restrict and monitor the uses
made of the digital object, while at the same time it has become technologically
possible for the user - assuming, of course, that she has Internet access - to
reproduce it immediately, infinitely and at close to zero cost. The battle between
these two tendencies is the battle that we see being fought out in courtrooms today
over peer-to-peer networks, term extensions, software and business method patents,
and the like.

There is little doubt that the protection of intellectual property rights in the era of
digital content is being strengthened, increasingly placing control of content in
private hands. Copyright and patent law has expanded in various ways: by term
extension, by the patenting of living organisms and business methods, and by the
criminalisation of violations. Protection itself has become more complex and multi-
layered: on top of ordinary intellectual property rights such as copyright, we now
typically find access to databases governed by strict contracts, together with various
database management systems which provide additional technological protection for
content, and which are themselves protected in turn, in the United States, for
example, by anti-circumvention measures that can effectively act as a threat to free
speech and even to scientific method, which depends on full disclosure. Meanwhile,
long-standing problems such as the shortage of books in most libraries across the
South remain unsolved and are even getting worse, as we explain later in the dossier.

How has this situation arisen? In 1973, in the aftermath of the oil price shock, the US
Senate's Committee on Foreign Relations held sessions to try to identify other
possible vulnerabilities in the US economy, apart from oil dependency. The
committee - 'sharp cookies' all - warned that 'information and communications'
represented a strategic resource as far as the US were concerned, and that policies
needed to be put into place to protect them as soon as possible. Shortly afterwards,
President Gerald Ford appointed a Task Force on National Information Policy, a
body that famously warned that "property concepts have been central to [...] social
and economic activity in our society, but [...] were formulated to deal with tangibles,
primarily land and chattels. When information, ways of dealing with information, or
information products are treated as property, issues arise which differ from those
resulting from the application of property theories to tangible matter." 4

In other words, IP protection needed to be tougher, and it needed to be imposed
everywhere in the world in the same way. In the bipolar world of the 1970s this was
a tough proposition, but after the collapse of the socialist bloc and the advent of a
world dominated by US economic interests, we have seen rapid progress towards
such an IP regime. The process reached its nadir in the world trade negotiations
known as the Uruguay Round of the General Agreement on Tariffs and Trade

3 C. Darch, 'Digital divide or unequal exchange? How the northern intellectual property
rights regime threatens the south' International Journal of Legal Information vol.32 (2004),
p.494.

4 Quoted in John Howkins, The creative economy: how people make money from ideas
(Harmondsworth: Penguin, 2002), p. 74.

12

(GATT), which were concluded in 1994, and ushered in the age of the World Trade
Organisation (WTO), the Agreement on Trade-Related Intellectual Property (TRIPS),
and most recently, bi-lateral trade agreements pushing vigorously for TRIPS+, that
is, even stricter protection of intellectual property than is envisaged in the TRIPS
agreement itself. The North Americans are of course, right in one important sense.
There is little doubt that the so-called 'creative economy' or copyright industries
constitute an extremely important sector of the current global economic system. One
popular source claimed as long ago as 1999 that the value of the global creative
economy was then US$2.2 trillion, growing at around five percent a year, and
representing 7.3 percent of the world's GNP of US$30.2 trillion.

In the following sections we hope to show, not only that the process of privatisation
in pursuit of ways to protect this extremely valuable economic sector is real and
harmful, but that it is in direct contradiction to the tendency of technological change to
continue to accelerate. As the conservative weekly The Economist recently editorialised,
"Copyright was originally intended to encourage publication by granting publishers
a temporary monopoly on works so they could earn a return on their investment. But
the internet and new digital technologies have made the publication and distribution of
works much easier and cheaper. Publishers should therefore need fewer, not more,
property rights to protect their investment. Technology has tipped the balance in
favour of the public domain." Astonishingly, the editorial continues by
recommending "a drastic reduction of copyright back to its original terms - 14 years,
renewable once. This should provide media firms plenty of chance to earn profits,
and consumers plenty of opportunity to rip, mix, [and] burn their back catalogues
without breaking the law." 5

1.2 How privatisation and monopolisation discourage creativity and
invention

If it is true, as we have argued, that the global IP regime as presently constituted
shows a tendency to privatisation and monopolisation of content and channels of
communication, then the next question must be what impact - if any - does this have
on creativity and invention? The question can be analysed at two levels, namely the
impact of the IP system on knowledge production at the individual level, and its
impact, especially in the post-1994 phase of global capitalist development already
identified, on the international division of labour. To put it another way: is it possible
for the countries of the South (more commonly called 'developing countries') to
realise their potential so long as rich countries control access to information capital?

The idea that copyright and patent protection function to encourage creative
endeavours has its roots in the eighteenth century Enlightenment, and was made
quite explicit from the very beginning of modern copyright. It can be convincingly
argued that this discourse was as much an ideological falsification then, in the
eighteenth century, as it clearly is now in the twenty-first. Indeed, Brendan Scott has
contended that copyright was always designed to benefit publishers and distributors

5 Editorial, The Economist, 30 June 2005.

13

rather than authors. 6 If this is so, and if it can be shown creators' motivations are
complex and varied, then the argument that strong IP rights encourage innovation
falls away. The question that remains is: do they have the inverse effect?

The impact at the level of the individual creator

Much intellectual property theory rests on a largely unexamined assumption, that
without a direct economic incentive, inventors will cease to invent, actors and singers
will fall silent, writers will put down their pens, and creativity in general will decline
catastrophically. Thus, the extensive scholarly and polemical literature on intellectual
property and copyright usually appears to assume that the individual creative
impulse is inherently acquisitive. In this view, creators are motivated largely by the
prospect that they will have a monopoly right to exploit their work economically in
the marketplace, under the protective umbrella of copyright law. It is this prospect
that 'calls forth' new works on a continuing basis. 7 In the absence of copyright
protection, or if copyright protection is allowed to weaken, the argument goes, these
creators will produce less or even nothing, and society's interest in innovation and
invention will be harmed. Conversely, any strengthening of intellectual property
protection either by term extension or by increasing the force of intellectual property
legislation will benefit society by enhancing the motivation of creators, and hence the
general levels of qualitative and quantitative production of creative works.

This hypothesis that creative acts are uniformly economic acts is problematic for
several different reasons, as we hope to demonstrate. First, it assumes an (in fact
unproven) economic motivation for all acts of creation, and then presupposes a
uniformly significant correlation between economic incentive on the one hand and
innovation and creativity on the other. Second, it conflates the motivations and
interests of individual creators in widely different circumstances with those of
vendors. 8 Third, it fails to distinguish, by ignoring the importance of moral rights,
between the interests of various categories of creators in intellectual property
protection. 9

Although many commentators have recognised that there is a problem of incentive,
few have spelled out its full implications for the way copyright protection actually
functions in society. The fundamental premise is that copyright protection performs
a useful social function by encouraging the creators of works to write, assemble or

6 Brendan Scott, 'Copyright in a frictionless world: toward a rhetoric of responsibility' First
Monday vol.6, no. 9 (September 2001), available
http://firstmonday.org/issues/issue6_9/scott/index.html

7 The metaphor of 'calling forth' is borrowed from Wendy J. Gordon, 'Authors, publishers
and public goods: trading gold for dross,' Loyola of Los Angeles Law Review v. 36 (Fall 2002),
passim.

8 The word 'creator' is used to indicate writers, songwriters, performing musicians, computer
programmers, inventors, filmmakers and others who produce the content of copyrightable or
patentable works. The word 'vendor' is used to indicate publishers, database owners,
recording companies and other types of corporation that typically exist to distribute content
for profit. Both these categories can be referred to as 'rights holders' but it is central to the
argument that they hold sharply distinguishable kinds of interest in their rights.

9 A full-time professional writer of fiction, for example, has different interests in different
aspects of copyright protection than a journalist, or than an academic producing a scholarly
article in a journal.

14

compose cultural and scientific works. It does this first by recognising their so-called
'moral rights' to decide how and when to publish (if at all), to publicly assert their
authorship, and to protect the integrity of their creations. It does it second by
providing a statutory framework in which such works can be put to economic use.
The profit motive, in this view, is what drives most creative activity: writers write
and singers sing to make money. Unsurprisingly, representatives of the modern US
entertainment industries strongly and openly endorse this stance; Jack Valenti,
former head of the Motion Picture Association of America, is, for instance, on record
as claiming that 'copyright protects not just the financial interest of people who
create artistic or intellectual property, but the very existence of creative work.' 10

Two questions arise. First, is it true that the primary motivation for creative work
amongst writers and artists is financial gain? It is intuitively clear that while some
creators may be motivated by the prospect of riches, the probability of these being in
significant amounts is about equivalent to their chances of winning the lottery.
Second, even conceding that some financial motivation may exist, is the present IP
regime the best way of protecting the creator's interests?

Over forty years ago, the economist Robert Hurt dismissed the idea that authors are
uniformly motivated to write "in the expectation of monopoly profits", pointing to a
wide range of other intentions, such as "the propagation of partisan ideas; notions of
altruism [...]; desire for recognition; and enhancement of one's reputation." 11
Obviously there are many more possibilities. Hurt was also able to show that in the
nineteenth century, even without the benefit of copyright protection, British authors
and their publishers were able to turn a profit in the United States book market for
solid and conventional economic reasons. 12

But does copyright protection have other advantages for creators; does it stimulate
their creativity in other ways? The answer is probably no; there is a surprisingly
venerable tradition of serious criticism by economists of intellectual property
protection as a stimulus to innovation. 13 In 1958 the economist Fritz Machlup wrote
in a report to the US Congress that the patent system represented a victory for the
lawyers over the economists. Machlup was not alone in believing that the copyright
and patent systems are in fact "a form of protectionism [... an] interference with a free
market." 14 This critical tradition continues to the present day. In a recent and widely
reported paper published by the Federal Reserve Bank of Minneapolis, Boldrin and
Levine argue that the copyright and patent systems reinforce monopoly control, keep
prices high and actually smother future innovation. 15 As Dean Baker, also an

10 Jack Valenti, 'There's no free Hollywood,' New York Times, 21 June 2000, emphasis added.
Available at http://www.eff.org/IP/Video/20000621_valenti_oped.html [16 September
2003].

11 Robert M. Hurt (and Robert M. Schuchman), 'The economic rationale of copyright,'
American Economic Review vol.56, no. 1-2 (March 1966), p.425-426.

12 Hurt and Schuchman, op. cit.., p. 421 -432.

13 However, the modern reformist writings on IP of lawyers and non-economists such as e.g.
Lawrence Lessig, Pamela Samuelson, Jessica Littman, James Boyle, or Siva Vaidhyanathan
make little use of the inefficiency argument.

14 Dean Baker (Center for Economic and Policy Research, Washington DC), e-mail to Colin
Darch, 8 January 2003.

15 'Perfectly competitive innovation/ Federal Reserve Bank of Minneapolis, Research Dept.
Staff Report no.303, March 2002, available at

15

economist has pointed out, "calling patents intellectual property 'rights' does not
change their logical status as a form of protectionism." 16

In fact, and counter-intuitively, it is widely recognised that in certain circumstances
"reward can have adverse effects on intrinsic motivation and objective task
performance." 17 This has been a commonplace of research in such disciplines as
social psychology and behavioural economics since at least the mid-1960s. Results
have suggested that the functioning and impact of incentives is much more complex
than most copyright commentators appear to suppose. 18 Zajonc, for example,
researched ways in which the presence of an audience impacted on performance, and
regretted in the 1960s that social facilitation, that is to say the impact of peoples'
behaviour on the behaviour of others, was a "nearly completely abandoned area of
research." 19 This is clearly an area which requires serious further investigation if we
are to question the basic assumptions of the dominant IP discourse.

US researchers Boldrin and Levine believe that copyright, patents, and similar
government-granted rights serve only to reinforce monopoly control, with its
attendant damage of inefficiently high prices, low quantities, and stifled future
innovation. In Perfectly competitive innovation, a report published by the Federal
Reserve Bank of Minneapolis, they argue that economic theory shows that perfectly
competitive markets are entirely capable of rewarding (and thereby stimulating)
innovation, making copyrights and patents superfluous and wasteful.

The impact on the international division of labour

It is sometimes argued that the highly developed system of protection for IP is in
itself likely to stimulate innovation and thus development in poor countries,
presumably since most developed countries in fact have such systems. This may, of
course, simply be an example of the post hoc, propter hoc fallacy at work, but there is
nonetheless an extensive literature on the supposed positive causal relationship
between IP protection and socio-economic development.

In this vein, a major report by the United Nations Conference on Trade and
Development (UNCTAD) on the relationship between IP rights and development
was published in 2003. This text asserted that "innovation is heavily dependent on

http://minneapolisfed.org/research/sr/sr303.pdf [23 September 2003]. For a useful
summary of reactions, both positive and critical, see Douglas Clement, 'Creation myths: does
innovation require intellectual property rights?' Reason Online, March 2003, available at
http://www.reason.com/0303/fe.dc.creation.shtml [21 February 2003].

16 Dean Baker, Vaccine buying pools: is more protectionism the best route? Paper for
conference Making New Technologies Work for Human Development, Tarrytown, NY, USA ,
26 May 2001
http://www.cepr.net/publications/vaccine_2001_05.htm

17 John C. McCullers, 'Issues in learning and motivation', in: M. R. Lepper and D. Greene
(eds.), The hidden costs of reward (Hillsdale, NJ: Erlbaum, 1978), p. 5.

18 K. W. Spence, Behavior theory and conditioning, (New Haven: Yale University Press, 1956);
K. O. McGraw, 'The detrimental effects of reward on performance: a literature review and a
prediction model', in: M. R. Lepper and D. Greene (eds.), The hidden costs of reward: new
perspectives on the psychology of human motivation (Hillsdale NJ: Lawrence Erlbaum
Associates, 1978), p.33-60.

19 Robert B. Zajonc, 'Social facilitation,' Science, vol. 149, no. 16 (July 1965), p. 269-274;

16

IPRs", while conceding that "the exclusionary aspects of strong IPRs can increase
costs of follow-on innovation and imitation.' UNCTAD therefore came down in
favour of 'a balanced approach [...] with particular features of the system varying
according to the level of economic development." 20

However, this has not yet happened. As Ruth Gana bluntly asserts, "it is quite clear
that one of the central motivations behind the TRIPS agreement was to target
enforceability of foreign intellectual property rights in developing countries. As such,
the global model of intellectual property protection imposed by the agreement is not
a reflection of the need to encourage creativity or to promote the public welfare.
Rather, the chief aim of the agreement is to secure from these countries and societies
the full monopoly benefits that western intellectual property laws offer." 21 In other
words, the purpose of imposing a globally harmonized IP system is fundamentally to
shore up the existing international division of labour, and has little to do with the
encouragement of innovation in developing countries.

1 .3 Why this tendency is against the interests of creators and
society in general

It is at least possible that a consensus is beginning to emerge across a range of
political opinions from right to left, to the effect that the balance of IP protection has
shifted too far in favour of commercial rights holders. In an earlier section, we
quoted the British establishment weekly The Economist, describing present copyright
law as "worse than anachronistic in the digital age." However, a case can be made
that the tendency to privatization is pernicious for several utilitarian reasons, and that
copyright repeal or reform is necessary because present trends present specific threats
to values and activities that are essential or important to general social well-being in
the North as well as in the South. In this section we shall focus on three of these
threats - to free speech, to scientific method, and to the creative process - but we are
aware that there may well be others.

Current IP laws as a threat to free speech

As the copyright lobby - in other words, advocates of wider, longer and more
vigorous IP protection for content - has extended its influence over law-makers,
especially in the United States, it has succeeded in pushing for the criminalisation of
acts that were previously not criminal, and has also succeeded in imposing a general
discourse of criminality on the debate. It is true that the term 'piracy' has long been
used to describe the production of unauthorized copies of literary works for sale
without payment of royalties to the creators. However, it seems that the near-
hysterical equation of any kind of unauthorized copying with 'theft', the presentation of
such activities as constituting a threat to creativity itself (rather than primarily to
corporate profits), and the almost vindictive pursuit of young consumers through the

20 UNCTAD, Intellectual property rights and sustainable development (Geneva: International
Centre for Trade and Sustainable Development [ICTSD], August 2003), p. 65

21 Ruth L. Gana, 'Has creativity died in the Third World? Some implications of the
internationalization of intellectual property' Denver Journal of International Law and Policy
vol.24 (Fall 1995), p.141.

17

courts for offences such as downloading music files, have created a new and
intimidating environment.

Whether this in itself constitutes a threat to free speech, it is of course too early to say.
The holding of unpopular opinions, is, tautologically, unpopular. But there are some
indications that voices may already have been silenced. In April 2001, for example,
several computer scientists from Princeton and Rice universities in the United States
withdrew a technical paper from a conference, under threat of action by a company
that had challenged them to try to remove a digital marker from a music recording.
The scientists had done this, but subsequently received a letter from the Secure
Digital Music Initiative Foundation stating that "any disclosure of information
gained from participating in the public challenge would be outside the scope of
activities permitted by the agreement and could subject you and your research team
to actions under the Digital Millennium Copyright Act." This was described by
another scientist as "pure and simple intimidation." 22 Current US law forbids the
discussion of methods used to circumvent technological protection of content, and
according to the Electronic Frontier Foundation (EFF) has had 'a chilling effect' on
free speech. As a result, says the EFF, some "online service providers and bulletin
board operators have begun to censor discussions of copy-protection systems,
programmers have removed computer security programs from their websites, and
students, scientists and security experts have stopped publishing details of their
research on existing security protocols. Foreign scientists are also increasingly uneasy
about travelling to the United States out of fear of possible DMCA liability, and
certain technical conferences have begun to relocate overseas." 23

More recently, according to newspaper reports in the United Kingdom, a man was
allegedly fired from his job because he expressed 'inappropriate' opinions on
copyright issues on a television show. 24 The man, Alex Hanff, is in dispute with the
MPAA over a now-defunct website, and was interviewed about this on a BBC news
programme. The next day he was told that he might have jeopardised his employing
company's chances of securing government contracts, and was fired. The company
stated that Hanff had "declared that he is opposed to copyright and intellectual
property laws. Since much of our business is based around the protection of our
copyright and intellectual property, we consider our dismissal of Mr Hanff entirely
justified and appropriate." 25

The threat to scholarly communication and scientific method

Scholarly communication - in other words, access to the entire scientific record -
depends in part on what is effectively a global network of libraries sharing the
burden of acquisition of the estimated 70,000 or so academic journals that are
published around the world. Academic libraries share these resources primarily
through a system of inter-library loans. If a researcher requires an article from a
journal that is not in library A's collections, staff members contact library B, which
does subscribe, and get a photocopy of the article, which the researcher can keep.

22 John Markoff, 'Scientists drop plan to present music-copying study', New York Times (27
April 2001).

23 EFF, Unintended consequences: three years under the DMCA, v. 1.0 (May 3, 2002), p. 2.

24 Owen Gibson, 'File-share defender fired over TV show', The Guardian (4 July 2005).

25 Ibid.

18

This is frequently done free of charge, as there is a principle of reciprocity at work,
but in theory the researcher may have to cover the copying costs.

Journal publishers typically charge higher subscription rates to libraries than to
individuals, precisely in order to recover what they see as lost sales from this kind of
activity, which is, of course, perfectly legal under the fair dealing or fair use
exemptions. Stan Liebowitz has termed this differential subscription charging
"indirect appropriability." 26 However, with the advent of multi-layered protection of
digital content, libraries that subscribe to electronic journals through access to a
database sometimes find that they are forbidden by the terms of the access contract
from sharing electronic or paper copies of articles with other institutions. The
researcher then has no other resort than desist, or to turn to a commercial document
delivery service to obtain a copy, perhaps at a transaction cost of US$8.00 or more.
This is an active disincentive to enquiry, especially in poor countries where research
funds are spread thin and $8 represents a significant chunk of change.

At another level, if the system of IP protection effectively closes off parts of the
scientific record, not through censorship or formal barriers, but by making access
unaffordable, it can be argued that the requirement of full disclosure is not being
met.

The threat to the creative process

In an interview published on Slashdot in May 2002, author Siva Vaidhyanathan
graphically described how the uncritical application of IP rights through litigation
had stifled an emerging musical form:

in the early 1990s I noticed [that rap] music was changing [...] the
underlying body of samples were getting thinner, more predictable, more
obvious, less playful. I had heard that there had been some copyright conflicts
in 1990 and 1991. So I suspected that lawsuits had chilled playful and
transgressive sampling. I was right. The courts had stolen the soul. And rap
music is poorer for it. We used to get fresh, exciting, walls of sound that were
a language unto themselves. By the mid-1990s, all we got were jeep beats and
heavy bass. 27

Vaidhyanathan argues that the US Digital Millennium Copyright Act replaced
copyright as "a fluid, open, democratic set of protocols under which you use what
you need and face the consequences, with a cold 'technocratic regime' ".

26 Liebowitz, 'Copying and indirect appropriability: photocopying of journals', Journal of
Political Economy vol.93, no.5 (October 1985), p.945-957.

27 Siva Vaidhyanathan on copyrights and wrongs, available
http://interviews.slashdot.org/ article. pl?sid=02/05/15/166220 [24 May 2002].

19

1 .4 Monopoly ownership and its consequences for artistic
expression

The tendency towards the privatisation and monopolisation of our common cultural
and scientific heritage may in fact not discourage creativity and invention in itself,
since, as we have already argued, the motivations for creativity and invention are
many and varied. Thus creators will likely continue to create, inventors to invent and
performers to perform, so long as the financial investment required for those
activities is relatively modest.

However, this does not mean that the tendency towards concentrated privatisation
can be seen as a neutral or even benevolent form for the social organization of
cultural and scientific production. In fact, as Herbert Schiller has pointed out, private
ownership in and of itself plays a key ideological role in the process of global
domination by Western media conglomerates, for which privatisation is an essential
characteristic of an under-defined freedom: "the main constituent of a free press, it
was unqualifiedly asserted, is that it is privately owned. Without private ownership
of a newspaper, radio or television station, or other medium [...] there is no freedom
of the press." 28

Indeed, the process of privatisation in fact produces a series of problems. First,
success in the market becomes the primary determinant of worth as well as value,
and the market can easily be manipulated. Second, cultural diversity suffers,
especially if the number of media conglomerates is constantly shrinking, since there
is little profit in specialist or minority tastes. Third, the business strategy of searching
for block-busters - cultural products such as movies or hit records that are consumed
around the world in the same way - leads ineluctably to the copying of previously
successful formulae. Fourth, truly creative work can only succeed commercially by
pure chance, since the less formulaic it is, the less likely it will be that it will attract
serious marketing or promotion.

The market as the primary determinant of worth and value

In a strictly commercial view of culture, if the investment needed for creating an
artistic work is high, then it is only feasible to raise the necessary funds if distribution
is guaranteed, since otherwise no return is possible. In this situation artists are
confronted by definition with the problem that the channels of distribution and
promotion are effectively locked, open only for the happy few, the limited number of
lowest-common-denominator artists who are selected by the owners of the
communication media on the basis of past successes or likely future successes.

As David Crosby observed in an interview in March 2004, "when it all started, record
companies - and there were many of them, and this was a good thing - were run by
people who loved records. Now record companies are run by lawyers and
accountants. [...] The people who run record companies now wouldn't know a song

28 Herbert I. Schiller, Mass communications and the American empire (Boulder, Colorado:
Westview, 1992), 2nd ed., p.23.

20

if it flew up their nose and died." 29 Nowadays, record companies and small
independent publishers have been taken over by large media corporations - in
Crosby's words "big fish eat little fish." Inevitably, the link between the creator and
the real decision-makers in the company is weakened or even disappears altogether:
"the bigger a company gets, the less it gives a damn about you." 30

Cultural diversity

The concentration of the financial and economic control of IP rights in the hands of
an ever smaller number of private owners is not in the interest of artists for various
reasons. For one thing, they miss the opportunity to communicate with diverse
audiences to stimulate creativity. In addition, artists whose opportunities are
restricted to a limited range of outlets miss out on other, unpredictable sources of
income.

For society in general, it is a catastrophe when artistic diversity - concretely and
actually created and performed - does not in fact reach a range of different social
groups, so that they can choose what they enjoy. The media corporations effectively
dictate what huge masses of people should see, watch, hear and enjoy. It is difficult
for most people, who are ill informed about the existing and varied artistic landscape
in their own societies, to escape the restricted offerings of the cultural conglomerates.
For example, in a recent open letter to the recording industry published on the
Internet, Glenn McDonald wrote of "a French band I had to go to France to discover,
and wasn't that supposed to be the kind of thing I'm paying you for? While you were
watching people vying on TV to be the next disposable idol, I was wondering what
the rest of the world sounds like. Half the time it doesn't sound all that different,
sadly, because they're probably watching those same miserable shows, but
sometimes the small differences are enough to make me happy [...] your greed isn't
even loyal to itself, so how can you hope for loyalty from anybody else?" 31

Corporations are thus in a position to decide what is and what is not an artistic
creation. They select a tiny fraction of actual artistic production, and market it as the
only work of interest, hampering cultural exchange and cross-fertilization, and
preventing audiences from forming their own ideas or selecting works of art
according to their personal tastes or circumstances. The conglomerates, of course,
also control the channels of communication, possible interpretations of works, and
the limited range of public discourse.

All this impedes the democratic exchange not only of ideas and opinions, but also of
sentiments, kinds of pleasure, or expressions of sadness. It is a characteristic of
democracy that many voices can be heard, and many opinions expressed. The public
domain in a democratic society is the mental and physical space in which the
exchange of ideas and an open debate around all sorts of questions can take place
without interference. The arts are critical to democratic debate and to the process of

29 The way the music died: interview with David Crosby. Frontline, PBS, 4 March 2004.
Posted at
http://www.pbs.org/wgbh/pages/frontline/shows/music/interviews/crosby.html

30 Ibid.

31 Glenn McDonald, 'The war against silence'. No. 503: 'Warnings and promises'. 2 June 2005.
Available http://www.furia.com/twas/twas0503.html

21

responding emotionally and in other ways to life's questions. A diversity of forms of
expression and channels of communication is needed. People's opinions are formed
inter alia by the books they read, the music they hear, the films they watch and the
images they see - and not always at the rational level. The arts include all forms of
entertainment and design and touch our hidden emotions and drives, our
perceptions and hopes, our desires and our very selves.

Artistic creations from different parts of the world can have an important impact on
groups of people within a particular society at a given moment in history.
Nevertheless, it is important that a substantial part of artistic communication reflects,
without being nostalgic, what is going on in any given community, including the
virtual communities formed by the Internet. It would be a serious loss if none of the
sentiments expressed in the arts was related to the specific conflicts, the desire for
conviviality, the way people enjoy themselves, the specific kinds of humour or
aesthetic that are found in a particular society.

Moreover, it is important that within any society a diversity of forms of artistic
expression is created and distributed by diverse artists and creators. People are
different; and what is more human than hoping to find forms of theatre, music,
visual arts, literature or film that express adequately one's own confusions, feelings
of delight or aesthetic tastes? 32

The copying of previously successful formulae

The business plan of the media corporations boils down to the search for a block-
buster, a summer hit, a bestseller. Their almost complete inability to predict what
will become popular in this way is clearly a major impediment to their success. The
strategy is to keep on churning out the records and the movies until one catches fire.
Ironically, as Crosby says "every once in a while, there's an aberration, a crack in the
pavement. Somebody [...] will have a hit [... that's] just so good, that it slides in
between all of the meaningless, tasteless, cardboard cut-out crap." 33

Crosby continues: "We spent time with a lot of people [...] and they'll all say, 'I've
just found the new Norah Jones. I've got the new Norah Jones. You know, she
sounds just like the new Norah Jones.' See, that's the wrong thing. They're out there
looking for a clone of whatever's at the top." 34 Other singers and musicians agree: "in
times past, an A&R man [...] would help an artist to find songs, perhaps put them
with specific musicians and arrangers. The role was creative and at its best, led to
relationships which fostered the performer's growth, over time. If a company had a
great success with something, other people would look for someone to equal that
success, sure, but they wouldn't be looking for something identical, because what
was appreciated was difference. If you couldn't hear an artist's sound as distinctive,
who would want it?" 35

32 Joost Smiers, Arts under pressure: promoting cultural diversity in the age of globalization
(London: Zed Books, 2003), p.vii.

33 Crosby, The way the music died.

34 Ibid.

35 Barb Jungr, 'Why are pop singers so samey and sexless?', Spiked-Online, 27 June 2005.
Available http : / / www . spiked-online .com/ Printable / 0000000C AC21 .htm

22

The power of marketing and promotion

The consolidation of power in the media conglomerates, through control over both
content and channels of distribution, permits global marketing and promotion. A
company with the capacity continuously to manufacture its cultural products in
large quantities and to distribute them effectively to many parts of the world, is in a
position to persuade huge numbers of people that what is on offer is something they
want. It has the expertise to transform all those single products into 'not-to-be-
missed experiences'. It can upgrade its international operations to a privileged
position by expanding horizontally and tapping emerging markets worldwide, by
forging vertical alliances at all levels and in all branches of the cultural market, and
attracting the necessary investment capital.

This is the power to decide who will be a client, a viewer or a listener; but it is also
power that extends to moments before this. It is the power to select a few artists and
reject the rest; and to give those who are selected massive distribution and
promotion. These key decisions limit and, more often than not, effectively create, the
field of cultural options that many people experience as the only ones. In order to
want something else, a person needs a well-developed imagination and a conviction
that cultural life can offer more than what is currently and seemingly unavoidably on
offer on a mass scale.

The decisive question thus becomes: who has access to the communication channels
of the planet, both digital and material? Who has access to the emotions of large
numbers of people and to their disposable income? The question of evaluating the
content, ethical standards and quality of what the cultural industries offer is
secondary to the major issue of control by this oligopoly. Corporations exercise
control to steer creativity in certain directions, select particular artists, set up the
means of seduction, prepare a favourable reception, and manufacture a range of
experiences around a prioritised singer, writer, dancer, director, designer and his or
her products and the broad range of gadgets inextricably surrounding their work. 36

1 .5 Average artists and conglomerates cannot benefit from the
same copyright system

We have already pointed to the need to question the uncritical acceptance of an
Enlightenment discourse that permeates discussions on copyright, to the effect that
the real purpose of the IP system is to encourage creativity and innovation. The
Copy/ South project strongly believes that more research is needed on the problem of
the motivation of creators and innovators and on differentiation of reward, as well as
on the question of who really benefits from the system (or to put it more crudely,
follow the money).

It would be naive to believe that an intellectual property rights system that is
disproportionately influenced by the real interests of a handful of giant international
media corporations (see below) is also designed to ensure that struggling researchers,
writers and artists can work free from money worries. It is clear that the system of

36 Smiers, Arts under pressure, p. 28-29.

23

rewards is determined by what is effectively a winner-takes-all search for a smash hit
recording or a block-buster movie, in which the value of diversity or of minority-
taste markets are
secondary considerations.
Thus we can understand,
for example, the US movie
industry's propensity to
make second, third or even
fourth sequels to successful
films, which have come to
be regarded as franchises,
and are accompanied by
the marketing of hugely
profitable toy lines and
other branded product

Musicians in Senegal and their earnings

Here are some statistics on the situation of musicians in Senegal in
the year 2000:

• 'Eighty percent of musicians in Senegal are unemployed or
underemployed.' One study estimates that US$600.00 is the
average annual income for a musician in Senegal, though this
figure is not substantiated and appears to be inflated.

• In Senegal, African musicians who have international sales
constitute 'perhaps a dozen of the country's estimated 30,000
musicians.'

• 'The pressing need for short-term income often leads to
musicians giving up their rights rather than licensing or some
other sort of business/legal arrangement that would provide
longer-term income.'

The general approach of the World Bank and the World Intellectual
Property Organisation is, essentially, to suggest the further inter-
meshing of African musicians into the global copyright net. Though
citing "the vision" of Nashville, Tennessee, USA as a model so that
"African countries would create their own Nashvilles" even intellectual
property 'fundamentalists' are forced to admit that the results are likely
to be modest. The idea (for Senegal) is to build an industry for the
30,000 low-income musicians, recognizing that the measure of
success would be a modest increase of earnings for each of them.
One would hope that in this supportive artistic and business
environment a few more of the 30,000 will make it big time,' conclude
the authors of The Africa Music Project. And the message that
intellectual property is central and necessary is one that is continually
reinforced. The first element of their purported musicians' dream is
strengthening IPRs, including their policing, and the goal of
archiving/conserving of Senegal's musical patrimony is 'both to
maintain music from generation to generation [obviously a laudable
goal] and to reinforce the IPR system.'

Sources: Frank J. Penna et al., The Africa Music Project' in: Poor
People's Knowledge: Promoting Intellectual Property In Developing
Countries (Washington DC: World Bank and Oxford University Press,
2004); and Alan Story, 'Intellectual Property Rights, the Internet, and
Copyright', Commission on Intellectual Property Rights Study Paper
no. 5, (January 2002), available at:

http://www.iprcommission.org/papers/pdfs/study_papers/sp5_story_st
udy.pdf

The history of the relations

between artists and

recording companies,

writers and publishers, and

film-makers, actors and

studios is replete with

examples of exploitative

contracts, bad faith, and

bitter legal struggles for

control of the estates of

deceased artists whose

works have turned out to

be money-spinners. This

has especially been the case

when the creators have

been from developing

countries, or, in the case of

the United States, when

they have been members of

disempowered

communities, such as

African- Americans. There

are thus two aspects to this

question, namely the

relationship of the

individual creator to the

corporate rights holders

within the system, and second, the way in which an undifferentiated Western system

itself impacts on cultures with differing ideas of the nature of authorship and of text.

In fact, royalties and other earnings from intellectual property rights constitute only a
fraction of the income of most active professional artists, even in such markets as the
United States, while in the developing world, they are almost certainly completely
insignificant. A recent survey of US jazz musicians showed that just only a little over
half of them had earned their major income in the previous year from musical

—

24

activity of any kind, let alone from the royalties from their intellectual property. 37
Indeed, around two-thirds earned only around US$7,000 a year from music. In these
circumstances, it is hard to accept the sincerity of the media corporations when they
claim to be representing the interests of struggling creators. In any case, as Ruth
Towse has cogently pointed out "royalty payments to all but the top artists are
typically small and firms in the creative industries are typically large, making for a
very unequal bargaining situation." 38

This inequality has often resulted in creators being cheated by the system while they
were alive, and in their descendants, commonly not creators themselves, fighting
bitterly over the estate after they are dead. For instance, a court case was recently
heard in London about the IP rights to songs featured in the popular film and CD of
the Cuban Buena Vista Social Club. The composers had been fobbed off with
"contracts [...] so cunningly contrived as to allow the publishers to get away with
paying the composers practically nothing [...] at most, a few pesos and maybe a
drink of rum." 39

Similarly, the South African Solomon Linda, author of Wimoweh, was a Zulu
musician who wrote a song "that earned untold millions for white men but died so
poor that his widow couldn't afford a stone for his grave." 40 The song has been a
major hit several times, most recently when it featured in the Disney cartoon The
Lion King, and is estimated to have earned, in fact, about US$15 million. But as Rian
Malan has pointed out,

That Solomon Linda got almost none of it was probably inevitable. He was a
black man in white-ruled South Africa, but his American peers fared little
better. Robert Johnson's contribution to the blues went largely unrewarded.
Leadbelly lost half of his publishing to his white 'patrons. ' DJ Alan Freed
refused to play Chuck Berry's 'Maybelline' until he was given a songwriter's
cut. Led Zeppelin's 'Whole Lotta Love' was nicked off Willie Dixon. All
musicians were minnows in the pop-music food chain, but blacks were most
vulnerable, and Solomon Linda, an illiterate tribesman from a wild valley
where lions roamed, was totally defenceless against sophisticated predators.

41

There are numerous examples of ferocious struggles around disputed intellectual
property rights in the form of creators' estates. The Jimi Hendrix estate, for instance,
valued at about US$80 million, remains the subject of litigation in what one report
has described as 'a long and bitter family feud' even though the singer and guitarist

37 See Joan Jeffri, 'Changing the beat: a study of the working life of jazz musicians', (San
Francisco: National Endowment for the Arts, 2003).

38 Ruth Towse, Copyright and creativity in the cultural industries (Rotterdam: Erasmus
University, 14 June 2001, unpublished paper).

39 David Ward, 'Writers of Buena Vista hits were paid with a few pesos and rum, court hears',
The Guardian (UK), 11 May 2005).

40 Rian Malan, 'Where does the lion sleep tonight?' Rolling Stone [date unknown, probably
August-September 2002]. Available from
http://www.3rdearmusic.com/forum/mbube2.html [11 January 2003].

41 Ibid. In 2006 a nd after a long legal battle, some type of financial settlement of this dispute
was announced, although no figures were released.

25

died intestate as long ago as 1970. 42 In an even more arcane dispute, the Walt
Disney Company is locked in billion-dollar litigation over marketing rights to
Winnie the Pooh products with an elderly woman, Shirley Slesinger Lasswell who is
not even related to A. A. Milne, but whose husband allegedly bought the rights in
1930. It should be clear that whatever result these contestations in fact have, it is
much more likely to be the enrichment of lawyers than the 'encouragement of
learned men to compose and write useful books.'

The failure to question the globalisation of what are in fact culturally specific ideas of
ownership, creativity and community is also a problem. Some commentators have
argued that in the process of spreading Western intellectual property law concepts,
many non-Western peoples have been compelled to 'make their claims using
categories that are antithetical to their needs and foreign to their aspirations.' 43 This
is an especially noticeable characteristic of much of the debate around IPRs and
indigenous knowledge or traditional knowledge which is discussed in Section 3.5.
But this is not necessarily a one-way street. In a fascinating study of the
appropriation of an Algerian Berber musical style, Jane Goodman has shown that the
encounter of non-Western societies with an imposed Western intellectual property
regime is not always simply linear and destructive. She argues that the Kabyle
people are producing "a markedly different understanding of the relationship
between authorship and the public domain. Instead of being conceptualized as a
neutral arena where unauthored and unowned materials are freely available to all,
the notion of the public domain in [this] discourse is being evoked to constitute
entirely new conceptions of authorship - conceptions that are not opposed to the
public domain but emerge from it." 44

The role of the big media corporations

Today there are far fewer small, independent publishing houses, recording
companies and film-makers than there used to be; even academic journals, which
until the 1960s were primarily produced and distributed by scholarly societies and
associations, are now mostly published by large commercial enterprises. This process
of consolidation and privatization of what was an extremely diverse field into half-a-
dozen giant media corporations has been described as the 'brutal decline' of trade
and academic publishing. Takeovers by multinational corporations have effectively
destroyed excellent publishing houses both in Europe and in North America. The
need to publish books, make records, or produce films that will quickly make large
profits drives these giant corporations. In publishing, their business plan consists
essentially of gambling on celebrity names - former presidents or aging rock stars -
who are paid huge advances to produce best-sellers. Naturally, such an environment

42 Brian A lexander, 'Judge settles long family feud over Jimi Hendrix's estate', New York
Times (25 September 2004).

43 Rosemary J. Coombe, The cultural life of intellectual properties: authorship, appropriation,
and the law (Durham NC: Duke University Press, 1998), p. 241.

44 Jane E. Goodman, 'Stealing our heritage?' Women's folksongs, copyright law, and the
public domain in Algeria' Africa Today vol.49, no.l (2002), p. 88

26

marginalizes alternative voices, which are unlikely to be profitable, and may also be
critical of the way the system is working. 45

When we speak of half-a-dozen media giants, this is almost literally the number of
corporations that do in fact control global cultural and scholarly production, and
which are among the most vociferous and influential voices calling for tighter IP
laws and better enforcement of their criminal provisions. In 2002, the main players
consisted of six big groups - AOL Time Warner, Vivendi, Viacom, News
Corporation, Disney and Bertelsmann - and one hybrid, Sony. 46 These giant
companies are not nimble - they are slow to adapt to new technology for example,
and if they fail to produce the required annual blockbusters, as might have been the
case for the Hollywood film industry in mid-2005, they have no way to respond. 47

If market forces really determined the fate of the media conglomerates, then we
could be moderately confident that either they would have to adapt to the demands
of the public, or they would break up. However, the media corporations spend large
amounts of money and commit significant resources to making sure that the rules
and the playing field are designed in such a way as to favour their continued
survival and profitability. In a report published in 2000 by the Center for Public
Integrity in Washington DC, it was shown that, inter alia, the conglomerates spent
US$75 million on campaign contributions between 1993 and 2000. In the four years
since 1996, they spent US$111 million on lobbying in Congress; there were 284
registered media lobbyists in 1999; and the media companies have taken 118
members of Congress and staff on 315 trips since 1997, at a cost of US$455,000.

Perhaps one of the best known examples of the way corporations are able to exert
direct influence on the law-makers occurred in 1998, when the Walt Disney film
company - whose copyright on the presumably still-profitable Mickey Mouse
cartoon character was to expire in 2003 - successfully lobbied the US Congress for a
copyright term law. Since the company had made campaign donations of over US$6
million the year before, they received a sympathetic hearing, and the act was duly
signed into law, effectively extending copyright protection forward another twenty
years after the author's death, from fifty to seventy years. 48 Subsequent court
challenges to this law were unsuccessful.

45 See especially the detailed account of the process in the field of publishing in Andre
Schiffrin's The business of books: how international conglomerates took over publishing and
changed the way we read (London: Verso, 2000).

46 See The Econ omist (25 May 2002). For earlier and similar reports, see also New
Internationalist no. 333 (April 2001),

47 See 'Hollywood crisis as summer hits dry up' The Guardian [London] (27 June 2005).

48 Some works get protection for up to 95 years. In the extensive secondary literature, for a
useful summary account, see Chris Sprigman, 'The mouse that ate the public domain: Disney,
the Copyright Term Extension Act, and Eldred v. Ashcroft' Findlaw's Legal Commentary,
Tuesday 5 March 2002, available at
http://writ.findlaw.com/commentary/20020305_sprigman.html.

27

SECTION 2 - THE ECONOMICS OF GLOBAL
COPYRIGHT: THE NET CAPITAL FLOW FROM THE
GLOBAL PERIPHERY TO THE CENTRE

2.1 Introduction

The world capitalist system is presently entering a phase, the earliest features of
which had begun to emerge already in the late 1970s, "characterised by the elevation
of information and its associated technology into the first division of key resources
and commodities. Information is a new form of capital." 49 In this new epoch,
information and knowledge are no longer available from what John Frow has termed
the former "interlocking ensemble of open 'library' systems with minimal entry
requirements" but are rather "managed within a system of private ownership where
access is regulated by the payment of rent." 50

Since poor countries need access to patented information for technology transfer, and
to copyrighted information for education and cultural production, the IP system that
was locked into place after the conclusion of the 1994 Uruguay round of the now
superseded General Agreement on Tariffs and Trade (GATT), can be seen as an
attempt to freeze the international division of labour. Poor countries hold few patents
and produce little local knowledge. They are net importers of 'information capital' on
a massive scale, and the purpose of the emerging world IP regime is therefore to
ensure that the net exporters - the countries of the industrialised North - continue to
extend control over that capital through the exercise of monopoly rents, and thus to
prevent any potentially competitive accumulation.

There is an often-cited maxim in the development literature to the effect that if you
give poor people some fish, you feed them for a day, but if you teach them how to
fish, you feed them for a lifetime. 51 However, in our times, the epoch of extended
copyright terms and the patenting of life forms and business methods, a caveat
becomes necessary: you feed them for a lifetime, provided they can afford to pay
licence fees for what is likely to be a patented fishing technology.

To cite a concrete example, US industries, including the entertainment industry,
appear to be doing extremely well, and it is logical that they should wish to secure
their own profitability. But they have also succeeded in harnessing the US
government and its foreign policy in the service of an expanding and aggressive
assertion of the corporate 'right' to patent or copyright any idea that might be
commercially exploited, up to and including plants, animals and other life forms. The
US has consistently sought to strengthen the global agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS), introduced at the end of the Uruguay

49 G. Loc ksley, 'Information technology and capitalist development' Capital and Class no. 27
(1986), p. 91, quoted by J. Frow, 'Information as gift and commodity' New Left Review no. 219
(1996), p.89.

50 Frow, Informati on, p.89.

51 Apparently a Chinese proverb sometimes attributed to Kung Fu-tse (Confucius).

29

Round of GATT in 1994. The truth is, all IP rights are trade-related, and so all forms
of content are under threat. Indeed, 'the US government has made the rigorous
enforcement of intellectual property rights a top priority of its foreign policy' as it
attempts to use such international organizations as the WTO and WIPO to impose
harmonization of local IP rules to US standards. 52 It is able to pursue this agenda
because in the era of globalization, international capital is pretty much 'free to pursue
profit wherever it wishes and on whatever terms it can impose.' 53 If these
international forums fail to reach agreement because of resistance by developing
countries in defence of their own interests, then typically the United States resorts to
negotiating a series of bilateral free trade agreements (FTA's) which incorporate the
key elements of TRIPS or TRIPS+, such as extended copyright terms, anti-
circumvention measures and so on.

There are, nevertheless, contradictions. How well are the Northern, and especially
the US content industries actually doing? In the long term, the confident predictions
are that they will be the dominant components of the global economy of the
immediate future, as we have seen earlier. However, there have also been many wild
claims of losses, mostly attributed to insufficiently ferocious administration of IP
legislation - certainly not, in their view, to any problems with their ability to adapt to
new environments or technology. It is undoubtedly true that the music recording
industry (which despite the rhetoric is not the same thing as the music industry) has
been experiencing a downturn, with a fall in 2002 of 7.2 percent in global sales of
recordings. From this, analysts have extrapolated hypothetical Tost sales' worth
US$4.7 billion by 2008, and have attributed this mainly to Internet file-sharing and
other forms of 'piracy'. 54 The problem is, as Stan Liebowitz and others have
convincingly shown, that it is impossible to quantify the exact relationship between
unauthorized copying and hypothetical purchasing behaviour by the copier, either in
the case of file sharing or of cheap Chinese or Mexican 'pirate' versions of CDs or
videos. It is quite possible that the music recording industry would be in a slump in
any case. 55

Although it is hard both to collect and to interpret consistent data about capital flows
associated with the trade in intellectual property, Copy South believes that it is
highly likely that, at present, 'there is a net flow of capital from the global periphery
to the centre in the form of IP licence fees and royalty payments'. It is clear that this
proposition is broadly defensible. Such a flow would be entirely consistent with the
negative balance of trade and payments between the periphery and the centre in
other commodities. What we want to do, however, is to see if it is possible to
quantify this in specific cases, such as the role played by the RRO's, in those
countries that have them.

52 Kristin Dawkins , 'Intellectual property rights and the privatization of life,' Foreign Policy
in Focus vol.4, no.4 (January 1999).

53 Leys, op. ci t, p.vi.

54 Dan Milmo, 'Pir acy costs will double in five years/ The Guardian, 23 September 2003,
available at http://www.guardian.co.uk/print/0,3858,4759205-111163,00.html [24 September
2003].

55 Stan Liebowi tz, 'Policing pirates in the networked age,' Policy Analysis no.438, 15 May
2002, especially p. 11 ff. Available at http://www.cato.org/pubs/pas/pa438.pdf [24
September 2003].

30

2.2 Calculating copyright-related capital flows from the global
periphery to the centre

With a certain amount of ingenuity, it is possible to answer, at least indicatively, the
question of whether there is a net flow of capital from the global periphery to the
centre in goods and services related to copyright (e.g. licensing fees, royalties). In
addition, we know that there is a general trade imbalance between the North and the
South, aside from debt-related capital flows. There is little reason to suppose that
things would be different in such an important area as the IP industries, especially
when we consider the importance that the US especially attributes to concluding
TRIPS agreements, bi-laterally if necessary, with its trading partners. In fact,
commentators and analysts from Daniel Bell in the 1970s, through Manuel Castells in
the 1990s, to such current popularisers as John Howkins have all agreed that "the
creative economy will be the dominant economic form in the twenty-first century." 56

Figures are available for the world trade in cultural goods, and the organised 'anti-
piracy' movement also makes quantified claims of losses because of illegal (or at least
unauthorised) copying of intellectual property. Such losses, while they may well be
exaggerated, indicate that rights-holders believe, probably with good reason, that
there is a large market for cultural goods at a global level. Problems arise, however,
in trying to disaggregate this data, or to break it down into discrete categories. It is
clear to us that case studies of such outflows from specific countries, or for particular
sectors, if feasible, would be extremely useful in making the point that the global IP
system costs poor countries much more than it benefits them, at least in trade terms.
This section is therefore divided into two sub-sections, one on the world trade in
cultural goods, very broadly defined, and one on possible uses in this debate of the
so-called 'anti-piracy' statistics.

The world trade in cultural goods

In 2000, an official report by the United Nations Educational, Scientific and Cultural
Organization (UNESCO) referred to a "crippling lack of basic quantitative and
qualitative indicators" regarding the relationship between culture and development.
The authors of the same report attempted to quantify the worldwide trade in cultural
goods, with the caveat that the real value of such goods often far exceeds their
"declared value at customs." Thus, one print of a movie may have a particular value
as an artefact, but its earning capacity when shown in a country's cinemas may be
exponentially greater. The UNESCO data show that the capacity to export cultural
goods of many small and developing countries "appear[s] to have shrunk" over the
period of the 1980s and 1990s, and Copy South has no reason to suppose that this
trend has been reversed. Indeed, the same UNESCO report goes on to point out that
"the flows of trade in cultural goods are unbalanced, heavily weighted in one
direction with few producers and many buyers. There are great structural disparities
both within and between the various regional trading blocks." 57

56 See e.g. Dan iel Bell, The coming of post-industrial society: a venture in social forecasting
(New York: Basic Books, 1973); Manuel Castells, The information age: economy, society and
culture (Oxford: Blackwell, 1996-1998), 3 vols.

57 Phillip Ramsd ale, International flows of selected cultural goods, 1980-1998 (Paris:
UNESCO, 2000), p.v. Cultural goods are defined by UNESCO's Framework for Cultural

31

Several key points emerge. First, this is a rapidly growing sector. Measured in
dollars, world imports of cultural goods have nearly quintupled over the past
quarter century, from a value of US$47.8 billion in 1980 to US$213.7 billion in 1998.
However, as an overall proportion of world trade, cultural goods have remained
steady, increasing only from 2.5 to 2.8 percent. Second, and most significantly,
developing countries accounted for 87 percent of all cultural goods imports in 1980,
and for 78 percent in 1998. The value of these imports leapt from US$5.5 billion in
1980 to a staggering US$57 billion in 1998, a tenfold increase.

The United States remains the main producer and the main consumer of cultural
goods, as the UNESCO report emphasises. In another report entitled Copyright
industries in the US economy, Stephen Siwek has attempted to quantify the importance
of this sector according to three main indicators: value added to GDP, share of
national employment, and lastly foreign sales. 58

If we examine the value of US exports of such categories of cultural goods as
recorded CDs and tapes, films and television programmes, computer software, and
printed materials (books, newspapers and magazines), it is clear that this is an
extremely important sector for the well-being of the US economy.

1991

2001

Software

US$19.65 billion

US$60.74 billion

Films

US$7.02 billion

US$14.69 billion

Records and Tapes

n/a

US$9.51 billion

Printed materials

n/a

n/a

Total

US$36.19 billion

US$88.97 billion

Source: Siwek, p.3-4

In fact, from as early as the 1990s, the value of the export to the rest of the world of
US copyright products (which include books, but are mainly entertainment
commodities such as films, music and television programs) exceeded the total for
clothes, chemicals, cars, computers and aeroplanes combined. In 1997, the value of all
such products was $414 billion, according to one popular account. 59 The core
copyright industries extend to "all industries that create copyright or related works
as their primary product: advertising, computer software, design, photography, film,
video, performing arts, music (publishing, recording and performing), publishing,
radio and TV, and video games." 60 This list does not even begin to cover the
economic value of patents and trademarks, which is considerable.

Statistics (FCS) as including printed matter and literature (FCS 1); music (FCS 2); visual arts
(FCS 4); cinema and photography (FCS 5); radio and television (FCS 6); and games and
sporting goods (FCS 8).

58 Stephen E. Siwek, Copyright industries in the US economy: the 2002 report (Economists
Incorporated for IIP A, 2002).

59 Howkins, loc. cit.

60 Howkins, op. cit., p.xii-xiii.

32

Using data from 'anti-piracy' sources

In order to make the political argument for the expansion and extension of
intellectual property rights, and for their increasingly severe enforcement, the
copyright industries themselves frequently try to show how 'piracy' and other
activities have damaged their interests, and by implication, the interests of the
countries whose economies they serve. Thus, unsubstantiated figures for losses due
to piracy come to be bandied about in newspaper reports and gradually acquire a
probably unwarranted authenticity. The problem is, as research by Stan Liebowitz
and others has shown, that there is no logically coherent way of demonstrating the
relationship between a specific number of, say, illegal music downloads from the
Internet, and actual lost sales of specific CD recordings. 61

Nevertheless, the data produced

by such sources as the Recording

Industry Association of America

(RIAA), the Motion Picture

Association of America (MPAA),

and the International Intellectual

Property Alliance (IIP A) is useful

if only because it reinforces our

sense of the claims that are being

made on poor countries by

Northern rights-holders. Indeed,

such claims apparently have a

significant degree of government

backing: the US International

Trade Commission apparently

believes that 'because of an

inadequate level of protection,

many potential markets are

unavailable to US manufacturers

due to the proliferation of

commercial piracy.' 62 Indeed, the

same source continues by stating

that "the United States and other industrialized countries continue to urge many

developing countries to live up to their new obligations by implementing the

necessary legislation and enforcement mechanisms with respect to protecting

intellectual property." 63 One source puts the 2002 losses to 'piracy' in the Middle East

Chomsky on the Capital Outflow

Noam Chomsky may not be far from the truth when he observes that
American companies stand to gain $61 billion a year from the Third
World on intellectual property rights, 'at a cost to the South that will
dwarf the huge current flow of debt services from South to North. '1
This is a calculation from the beginning of the nineteen nineties. Ten
years later, in 2003, this amount of money will be considerably
higher, certainly also when other Western rights holding companies
would be included in the calculation. A portion of this sum concerns
(besides patents and trade marks) copyrights on cultural 'products'.
Which part this is, however, is difficult to calculate due to enormous
differences in commercial statistics between countries. One may
assume that the money poor countries must pay for copyrights is
increasing, partly because Southern and Eastern countries feel
pressure from the West to fight piracy. This places a drain on the
already scarce resources of their police forces. Moreover, trans-
national cultural conglomerates penetrate those countries more
effectively with their entertainment and other cultural products.
Consequently, those countries must transfer the scarce hard currency
they have to Western and Japanese cultural industries.

Source: Noam Chomsky, 'Notes on NAFTA', in Kristin Dawkins 1993,
NAFTA. The New Rules of Corporate Conquest (Westfield, NJ: Open
Magazine Pamphlet Series, 1993) p.3.

61 See for example, Liebowitz, Policing pirates in the networked age (Washington DC: Cato
Institute, 2002), especially p. 11-14; and his Will MP3 downloads annihilate the record
industry? The evidence so far (unpublished paper, June 2003).

62 Christopher Johnson and Daniel J. Walworth, Protecting US intellectual property rights and
the challenges of digital piracy (Washington DC: US International Trade Commission, March
2003), p.l (US International Trade Commission. Office of Industries. Working Paper no. ID-
05).

63 Johnson and Walworth, p.l.

33

and Africa at US$211 million for films, US$160.5 million for recorded music,
US$371.5 million for business software, and US$150 million for 'pirated' books. 64

To get a better sense of these claims, and of the kind of pressure that accompanies
them, we can examine the case of South Africa's alleged failure to enforce Northern
standards of IP protection. In its 2002 Special 301 Report, the IIPA claimed that the
"total estimated losses due to piracy of US copyrighted works in South Africa rose to
$124.6 million in 2001. " 65 These losses, according to the claims of the IIPA, even "cost
[South Africa] jobs, tax revenues, and the possibility of developing its creative
community." In 2003, this same organization recommended that "South Africa
should be placed on the Priority Watch List", owing to a sharp increase in levels of
'audiovisual piracy', referring specifically to imports of motion picture DVDs. IIPA
also alleged that there was 'corruption [. . .] within South African Customs." 66

As far as the education sector was concerned, according to IIPA, book publishers
suffered from 'piracy' including unauthorized photocopying of complete textbooks
and other materials on university campuses, to a value of US$14 million, an apparent
drop over previous years that can be explained by exchange rate variations.
However, the wealthier educational institutions have been forced to become 'more
copyright-conscious' and in the case of the four institutions in Cape Town have
appointed a joint copyright officer to deal with copyright permissions for copies of
learning materials. So, although the data is not complete or totally reliable, we can
draw a broad picture of the continuing capital flows in copyright-protected goods
from the South to the North.

2.3 From TRIPS to TRAP: Free Trade Agreements and copyright

"He who receives an idea from me, receives instruction himself, without
lessening mine; as he who lights his taper at mine, receives light without
darkening me. " Thomas Jefferson

The birth and subsequent exploitation of the Agreement on Trade-Related
Intellectual Property Rights 1994 (TRIPS) is a fascinating story of how intellectual
property- oriented industries of the Northern part of the world have sought - and
have largely obtained - worldwide IP dominance. The recipe works in the following
manner. First, build a strong global intellectual property alliance of large
organizations from US, Europe and Japan. Next, bring the alliance to a slow boil by
getting them to lobby their respective national trade representatives to introduce
intellectual property as a trade related issue in world trade talks such as the General
Agreement on Tariffs and Trade (GATT), the precursor to the World Trade
Organisation (WTO). If some southern countries find the hastily cooked broth
unpalatable at first, add sprinkles of a few concessionary ingredients. Cajole and

64 IIPA, IIPA 2004 special 301 recommendations, IIPA 2002-2003 estimated trade losses due to
copyright piracy, in millions of U. S. dollars, and 2002-2003 estimated levels of copyright
piracy.

Middle East and Africa (IIPA, 2003).

65 IIPA, 2002 special 301 report, [South Africa], p.552.

66 IIPA, 2003 special 301 report, [South Africa], p.271.

34

even threaten them with severe consequences until they finally submit to trying the
new dish. Keep adding spicy new toppings to the recipe every few years to avoid
blandness. The best thing about this simple recipe is that the unsuspecting southern
nation-states buy in to the promise that the latest offering is good for their own long-
term health. In fact, without this 'a la carte IP menu', it is claimed that the
Southerners would suffer from terrible under-nourishment of creativity and intellect.

The above metaphor may be strained, but it captures the essence of unfolding events
as they have gathered momentum in global intellectual property-oriented policy-
making over the last two decades. What this section of our dossier explores are the
causes of this urgent impulse towards change in IP policy. How have such ideas
spread, at the cost of other options? Why is there a danger of actual creative
deprivation for many southern as well as northern citizens after dining from such a
limited and limiting IP menu?

First, why do we need an IP - or more specifically a copyright - policy cooked up in
Northern countries, to be digested largely by the Southern hemisphere? As Northern
countries, particularly the United States, have moved from a manufacturing base to a
services base and thence to a knowledge base for their economies, it has become
crucial to create new sources of revenue. Governments can better shield such new
revenue streams if the technologies and content that constitute the knowledge base -
such as proprietary software or entertainment products - are more ruthlessly
protected with a comprehensive and globally enforced IP regime; in fact, such
protection helps the copyright industries of the North to realize higher monopoly
profits.

The US has always had a surplus in its trade in IP products with the rest of the
world, an advantage that it has tried to sustain quite ruthlessly. For instance, the US
received a total of US$36.5 billion on its intellectual property exports in 1999, while
paying out only US$13.3 billion to other countries. No other country in the world
even comes close to a surplus on IP products of more than $23 billion. 67 Many other
Northern countries, such as Germany, France, and Canada actually have sizeable IP
deficits; these countries may perhaps be hoping that their IP fortunes will reverse in
the future. 'The copyright industries', specifically, 'are responsible for some 5% of the
GDP of the United States', and 'they gather in more international revenues than
automobiles and auto parts, more than aircraft, more than agriculture.' 68 The IP
industries in general and the copyright industries in particular are therefore of
tremendous importance to the well-being of the economies of the North, and exercise
significant domestic influence.

It is evident that Northern countries, dependent on such knowledge industries as the
media, entertainment, pharmaceuticals, biotechnology, telecommunications or
software, feel an urgent financial impulse to achieve strategic global trade dominance

67 Story, Alan (2002), 'Copyright: TRIPS and International Educational Agenda', in Drahos, P,
and Mayne, R, (ed.) Global intellectual property rights: knowledge, access and development
(Palgrave Macmillan), p. 131.

68 See Jack Valenti (2002), A clear present and future danger, 2002; Open Democracy,
www.opendemocracy.net/debates/issue-8-40.jsp, accessed 9 March 2004.

35

in those commodities. 69 However, why should it necessarily follow that the same
policies must therefore hold true for the rest of the world, the Southern part? Must
copyright standards for the rest of the world necessarily mimic those of the North, or
should the South decide appropriately what its domestic needs are using the vehicle
of free trade agreements? What is actually happening is that important policies
adopted in one part of the world are increasingly becoming a de-facto standard for
the rest; and this - with far reaching implications - is being achieved in three specific
ways.

To exercise global influence, the first and the most durable tactic of Northern
copyright and other knowledge-based industries is to make regular and significant
contributions to campaign financing, so that 'appropriate' candidates are elected to
the US Congress or other legislature. Essentially, in this way, large corporate
organizations can capture the regulatory structure of their national governments. The
US media, entertainment, pharmaceutical, bio-technological, and tele-
communications industries are among the most generous contributors to the
campaign coffers of US elected officials. The drug industry contributed a total of $230
million to financing campaigns in the 1999-2000 US elections cycle. The
communications industry ranked fourth in generosity, with $133 million. The health
industry ranked seventh with $96 million among industry contributors. 70 Once
elected, such officials may be expected to respond rather amiably to the most oblique
requests for national or international policy favours: indeed, the requests may not
even have to be spelled out.

Second, once in place, the regulatory capture of Northern governments including
European ones became a decisive force in shifting global priorities at crucial trade
venues such as GATT or the WTO. The successful introduction of TRIPS during the
8th GATT round between 1986 and 1994 was a masterly stroke in re-ordering global
IP priorities. In one swift move, intellectual property rights were transformed from
an obscure national concern of a handful of governments, into a global trade-related
issue. Once TRIPS fell within the WTO's ambit, threats and even sanctions could be
and were imposed by Northern nations against countries without 'adequate' IP
protection policies. This was a sweeping victory. The inclusion of TRIPS within the
WTO framework in 1995 went a long way towards realigning and harmonising the
intellectual property rights of most of the 152 WTO member states towards US
standards. All member countries, particularly those in the South, could now be
compelled to abide by the restrictive terms of TRIPS, and all within a strict time
frame.

Third, the introduction of TRIPS was merely the beginning of a grand new strategy
of seeking ever higher levels of harmonization of the copyright laws of the Southern
countries with those existing in the US and Europe. The new weapon in the US trade
arsenal was the skilful use of free trade agreements for achieving such ends; they are
agreements which are quite unlike multilateral institutional mechanisms. The easy
reproduction of copyrighted products worldwide, both digital and non-digital, (also

69 Pharmaceutical companies are organised into the International Federation of
Pharmaceutical Manufacturers and Associations [IFPMA], the entertainment industry into
the Recording Industry Association of America and The Motion Pictures Association of
America, and software enterprises into the Business Software Alliance.

70 Centre for Responsive Politics, 2004.

36

called 'piracy') became a rather convenient argument for copyright industries to
ratchet up the demands for more protective policies. 'Piracy' or theft of intellectual
property in developing countries, it is claimed repeatedly without fail, leads to
considerable loss by the owners and producers of intellectual property from the
developed world. The International Trade Commission claims that foreign 'piracy' of
United States IP costs the country approximately $40 to $60 billion per year. 71 It must
be noted that the domestic copyright industries of United States and western
European countries were during the nineteenth century pirating products with
considerable enthusiasm, something that was quite deliberately overlooked by their
governments. 72

Free Trade Agreements

In what appears as yet to be the most breathtaking method to impose US copyright
policy on the rest of the Southern world, the US is now putting great emphasis on
free trade agreements. The pace for increasing the volume and intensity of global
trade on intellectual property through the WTO is apparently slowing down due to
internal differences between member countries. This has led to an increase in the
number of bilateral and pluri-lateral (more than two) preferential agreements; at the
same time, the world share of such non-multilateral (i.e. unilateral) and preferential
trade has been steadily increasing over the last 10 years. 73 These agreements,
involving two or more countries, could be regionally specific, as say within Asia, or
geographically divergent, as say between Singapore and the United States. They are
also referred to as regional trade agreements if geographically proximate or more
generally as free trade agreements [FTA] as the idea is to free cross-border trade from
the encumbrances of tariff duties or restrictive rules.

The total number of free trade agreements in force in 2005 was 170 and another 90
were in the pipeline. FTA activities have recently intensified all over the world. Just
how intense is revealed by the fact that all but one member of WTO, namely
Mongolia, is engaged in some form of trade agreement or another. It is expected that
by 2008 the number of FTAs in existence may be close to 300. There are broadly three
trends apparent in these trade agreements:

1. countries across the world, including those traditionally reliant on multilateral
trade liberalization, are increasingly making FTAs the centre of their trade policy;

2. FTAs are in many cases establishing trade regimes that go beyond the scope of
multilateral trade agreements;

3. preference is being given on reciprocal trade agreements between developing
and developed countries. 74

So if sluggish growth of WTO is not delivering the desired trade results, then many
Southern countries, ever anxious to increase their exports, are keen to take advantage

71 Johnson, C, 'Global copyright protection and the challenge of digital piracy', 2003; USITC
Report 3640, ftp.usitc.gov/pub/reports/ittr/PUB3640.PDF - Retrieved on July 10, 2004.

72 Ben-Atar, Doron, Trade Secrets: Intellectual Piracy and the Origins of American Industrial
Power (New Haven, Conn. USA: Yale University Press, 2004).

73 Crawford, Jo- Ann and Fiorentino, Roberto V., 'The changing landscape of Regional Trade
Agreements, Discussion Paper No. 8, WTO, Geneva, 2005.

74 Ibid.

37

of preferential treatment of their Northern counterparts. There is also the matter of
not being thought as being 'left behind' in the competitive race for limited Northern
markets. In the bargain, however, the Southern states are conceding a lot more than
they presently realize.

The FTAs are clearly seen as opportunities by countries like the United States to raise
and harmonise IP standards worldwide. Facing opposition in multilateral forums
like the WTO, the US is opting instead for the free trade path to achieve its ends. The
approach is basically to use a US-oriented IP template and impose its preferred
standards on others through these FTAs. The IP issues in each FTA are negotiated
according to the template set by the last agreement, with the same provisions
included in each, regardless of whether they address some 'problem' in the
negotiating partner country. 75 For example, the free trade agreement between the US
and Jordan requires the latter country to change its domestic patent statutes so as to
allow business method patents; only the most naive could conclude that this change
was made at the request of the Jordanians or that Jordanian-based companies will be
the main beneficiaries of such a controversial type of patent.

Now let's examine two specific elements of copyright related free trade agreements.
These features cut right across many preferential agreements between the United
States and other countries. The first is with respect to the introduction of the
relatively new Digital Millennium Copyright Act (DMCA) and the second is the
extension of the copyright term to life of the author plus 70 years.

The DMCA and its worldwide implications 76

The DMCA is an overly restrictive copyright law produced in response to World
Intellectual Property Organization's (WIPOs) passage of the Copyright treaty signed
in 1996 by nearly one hundred and sixty countries. All signatory countries of the
copyright treaty are expected to legislate such acts within their national jurisdictions.
The 1998 US DMCA is a good example of a legislation many US copyright-oriented
industries seek to impose on the rest of the world. The terms of DMCA go well
beyond the general recommendations made by WIPO. Having failed to persuade
nations worldwide to adopt US- style copyright regulations via the WIPO Copyright
Treaty, the US government has included many stringent requirements of DMCA
along with others in its Free Trade Agreements (FTAs) with Jordan, Singapore, Chile,
Morocco, Australia, CAFTA, Bahrain and Oman. It is now seeking to include similar
provisions in its current multilateral free trade negotiations with 33 countries in the
Americas 77 ; such negotiations, it should be noted, are not going well in the rapidly
changing political climate across this continent.

The DMCA can prevent any copying or access to works, even copying that would be
completely excused under copyright law as a 'fair use' or 'fair dealing'. DMCA is
unbalanced as it basically provides considerable power to the copyright content
provider at the cost of the consumers' access to information, especially with reference

75 Weatherall, Kimberlee, 'Locked in: Australia gets bad intellectual property deal', Policy,
Vol. 20, No. 4, Summer 2004-05.

76 For more on this topic, see Section 4.8

77 See FTAA & Bilateral FTA Resources: www.eff.org/IP/FTAA/ [accessed December 04,
2005]

38

to their 'fair use' rights. The owners can now legally put a technological lock around
a work in order to control unauthorized access, or copying, or performance or
display of the work. In such a case, it is illegal to both circumvent that technological
lock, for example those that exist with 'copy protected' CDs, or to supply any
product, service or technology that is designed to help anyone else circumvent that
lock. Any person 'privately' engaged in the development or distribution of
circumvention technology for digital media, which should be allowed under
copyright's 'fair use' doctrine, is at risk, however, of being held criminally or civilly
liable. Further, digital or internet enabled access can be even more tightly restricted
with embedded software codes and shrink-wrap and click-wrap licensing
agreements.

Millions of copy-protected discs are already in circulation worldwide. One cannot
use such copy-protected discs on MP3 players, although making an MP3 copy of a
CD for personal use is still deemed as 'fair use'. The greater irony is that, unlike the
earlier generation videotaping machines which allowed users to 'time shift' or copy
content for later viewing (e.g. on their VCR), a company that distributes tools to
'repair' such unusable CDs - and hence restoring to consumers their 'fair use' rights
- will run the risk of lawsuits under DMCA's ban on circumvention tools and
technologies.

DMCA can also be used to create potential censorship by permitting copyright
owners to force internet service providers (ISP) to remove any material from the
Internet and the World Wide Web if the copyright owner believes the material to be
infringing in nature. 78 This clearly has consequences for the political freedoms that
the Internet gives people around the world. The copyright owners can enforce
removal of 'adverse' material by simply sending the ISP a written legal notice stating,
in good faith, that the material is infringing. If the ISP fails to quickly remove access
to such alleged infringing material, the provider itself can be held liable for any
infringement that might be found. It is quite evident that most ISPs will rather err on
the side of removing the claimed 'infringing' material rather than challenge the
copyright owner with its platoon of well-heeled lawyers.

The Digital Copyright Act can thus begin to mediate access to cyberspace for people
living in other countries. The Internet is a medium that is easily accessible from an
increasing number of parts of an increasingly wired world. At the same time, it
should be remembered that a high density of information traffic originates from the
United States. The English language continues to dominate the Internet with
approximately 78% of all web sites and 96% of e-commerce web sites.

The lengths to which the free trade agreements are going to achieve their objective
are quite astounding. Even the language of TRIPS comes across, by comparison, as
permitting somewhat more flexibility. For example, Article 11 of the WIPO
Copyright Treaty merely requires parties to provide "adequate legal protection and
effective legal remedies against the circumvention of effective technological
measures that are used by authors." The equivalent provision in the Australian Free
Trade Agreement, however, explains this point in inordinate details for two and a

78 See US supreme court judgment on: MGM Studios Ltd. ET AL Versus Grokster Ltd. ET AL,
June 2005. http://fairuse.stanford.edu/MGM_v_Grokster.pdf [retrieved on December 10,
2005]

39

half single- spaced, typed pages. It defines in most circumscribing terms what
technological measures are, what acts relating to them are proscribed, what
exceptions may be provided, and even when and how new exceptions can be
created, and what criteria we can apply in creating them. 79 The Central American
Free Trade Act (CAFTA) calls for civil and criminal penalties to punish anyone who
'circumvents' copy-protection technology or 'provides' such tools to anyone else.
Like the DMCA, it would cover everything from DeCSS (a tool which removes copy-
protection from DVDs) to products that do the same for e-books. 80

Future copyright policy will, in all likelihood, be drafted with the US looking over
the shoulder of its trade partners. The ever powerful US lobby groups will clearly
oppose, directly and through their trade representatives, any implementations they
consider less than optimal from their point of view.

81

Extension of copyright terms through FTAs

The other example within free trade agreements to be highlighted here is the clearly
inexplicable extension of the copyright term to life of the author plus 70 years. All
FTAs involving US have this clause as a requirement. It is a direct replication of the
US Sonny Bono Copyright Act of 1998 which extended the copyright hold for an
additional 20 years, to a total of 70 years after the death of an author. It was made
possible largely due to the intense lobbying of the Walt Disney Corporation (US
Sonny Bono Copyright Act, 1998) since the character Mickey Mouse was about to
come into the public domain.

It is almost impossible to find in the copyright literature any precise analysis of just
how the extension of the copyright term to life of the author + 70 years (or even 50
years according to the Berne Convention, one part of TRIPS) is related to any
acceptable economic logic. Do such long years of protection actually provide
additional time for the content owners to recover their marketing or financial
expenses and, if so, can one actually provide some calculation of the expected returns
for each of the next 50-70 years in a row? Quite clearly not. The extensions appear
more like ploys for preventing copyrighted artefacts from coming back quickly
enough into the public domain.

The standardisation of the copyright term and scope, which incorporates a basic
minimum level of protection as well as preventing the exclusion of certain copyright
expressions, is a result of the Berne Convention that all TRIPS/ WTO members must
also sign up to claim their due eligibility. This clearly has huge implications for most
Southern countries which need greater access to cheap and abundant information for
their national development. If copyrighted products take longer and longer to reach
the public domain, then inexpensive access to knowledge will be denied to a whole
generation of people. It is important to recognize that a nation's copyright policy is a
pivotal source determining the forms of control that can be exercised over access to
published information. The vibrancy of the public domain is under clear threat from

79 Kimberlee, op cit.

80 McCullagh, Declan, Copyright lobbyists strike again, August 1, 2005,
http://news.com.com/2010-1071_3-5811025.html [retrieved December 04, 2005].

81 For more on this topic, see Section 4.2

40

new forms of copyright protection envisaged by powerful copyright oriented
industries of the United States.

Conclusion

The protective muscle of US copyright industries are altering the information
landscape through free trade policy intervention over copyright term, the scope and
basic character of encrypted software, and the anti-circumvention technologies. All
former protections envisaged under most copyright laws are currently under even
graver threat with the shift to the digital domain. Stallman suggests that copyright's
role has now been completely reversed. It was set up to let authors restrict publishers
and for the sake of the general public. Digital technology has transformed it into a
system to let publishers restrict the public in the name of the authors. 82

Developed western countries have literally resorted to blocking or knocking away
the development of IP strategies of developing countries, strategies that were once
themselves used by the former in moving up the developmental ladder. 83 The
blocking of initiatives generally happens through the developed world's
considerable control over international institutions and the promise of access to
developed markets in return for more stringent IP policies negotiated through FTAs.

Can developing countries that are Tower down' on the ladder of technological
growth take advantage of other, more open, paradigms of knowledge distribution?
The struggle for the future shape of important aspects of copyright policy is being
addressed principally through the contrived elements of the FTAs. So while
copyright is being strengthened, the need for a corresponding 'copyduty' to sustain
the importance of the public domain is being gradually weakened. It is clear that if
the public domain is not constantly replenished, there is considerable danger of it
becoming unfertile - and hence not able to inspire new generations of copyrighted
work - and becoming 'off limits' to those who need to use its riches.

2.4 Reprographic collecting societies and their projected growth in
the South

The main purpose of a reproduction rights organisation (RRO) is to collect copyright
royalty fees from users on behalf of right holders, both publishers and authors. Such
fees are mostly generated through licensing schemes between RROs and user groups;
educational institutions are the predominant licensees and the principle source of
revenue for RROs. Hence RROs deserve particular attention in any assessment of
copyright and educational issues in the South.

In 2001, there were a total of 33 RRO national organisations, mainly in the developed
world. Three RROs existed at that time in Africa: the Dramatic, Artistic and Literary
Rights Organisation (Pty) Limited (DALRO) in South Africa, Zimcopy in Zimbabwe,

82 Stallman, R., Let's share, 2004; Open Democracy,
www.opendemocracy.net/debates/article-8-40-26.jsp [retrieved March 09, 2004]

83 Ha-Joon Chang, Kicking away the Ladder: Development Strategy in Historical Perspective
(London: Anthem Press, 2002)

41

and Kopiken in Kenya (IFRRO website). One of the key functions of national RROs is
to ensure the collection and transmission of copyright fees to foreign right holders
and, to facilitate such distributions, national RROs are members of the International
Federation of Reproduction Rights Organisations (IFRRO). 84 A number of bodies, in
addition to the IFRRO and individual RROs in the developed world, are encouraging
the further spread of the RRO system and philosophy, including to least developed
countries.

For example, at its centenary meeting in April 1996 in Barcelona, Spain, the 25th
Congress of the International Publishers Association passed a resolution calling for
the creation of RROs in every country of the world. WIPO copyright education
programmes in poorer countries and various World Bank reports also encourage, in
the context of improving or building copyright administrative systems and
enforcement regimes, the establishment of national RROs within these countries. The
question is: in the current copyright and publishing conjuncture, should the RRO
model be exported to Africa (and the South generally)?

The DALRO record in South Africa

The experience of the South African RRO, DALRO, is instructive. According to the
latest available (2001) financial date posted on the DALRO website, DALRO
distributed to national (i.e. South African) rights holders a total of €73,545.89 in
reprographic (essentially photocopying) royalty fees during its 1999 financial year.
By contrast, DALRO distributed a total of €136, 523.07 to foreign RROs (and hence to
foreign right holders) in 1999. The main source of DALRO revenues was the
educational sector, particularly universities and technikons. During the same period,
DALRO received a total of €19,802.62 from other (i.e. non-South African) RROs for
the reprographic copying done in these countries (and presumably for distribution to
SA rights holders; this is split between publishers and authors; the percentage split is
unknown, though certainly the UK's Copyright Licensing Association distribution
percentages greatly favour publishers over authors).

What these figures reveal is that distributions from SA reprographic users to foreign
holders were more than 2.5 times higher than the total distributions made to South
African right holders by DALRO 85 As is well known, South Africa is a much richer
country than any other in Africa and has a significantly larger and more robust
publishing and education sector (the latter being where many authors work.) But
even here, as the above figures show, the RRO system leads to a highly unequal
balance of payments to the advantage of richer countries and reinforces existing
patterns of dependency. If a fully functioning and active RRO were to be established
in any other African county, especially a least developed country, the financial
inequality would be even greater; such an African RRO would primarily - if not
exclusively — become a royalty collector for foreign publishers and authors
headquartered in rich countries.

At one level, for the establishment of a national RRO to make economic sense, that is,
to facilitate some level of inter-jurisdictional equality in distributions, a country
must, if it is required to pay significant royalty revenues, also have a significant

84 The website of the IFRRO is: http://www.ifrro.org/

85 Here is the math (slightly rounded): 73,000 - 20,000 = 53,000; 137/53 = 2.5.

42

publishing and publishing export sector. For example, the UK's CLA received a total
of £3.6 million from non-British RROs in 1998-1999; in that same year, the CLA
distributed £3.5 million to non-British right holders. In the 1999-2000 financial year,
the US Copyright Clearance Center, which represents 9600 US publishers and tens of
thousands of authors, collected US$79 million and distributed an estimated US$57
million to its own national right holders. 86 The conclusion: the publishing and
copyright picture in a country such as Senegal or Zimbabwe bears no relationship
whatsoever to that existing in the UK, the US, or even South Africa. The RRO model
simply does not fit in less developed countries; it is an artificial transplant from a
qualitatively different publishing climate. In fact, there is so little enthusiasm for the
RRO model in other parts of Africa that Kenya's Kopiken or Zimbabwe's Zimcopy,
the two other African RROs and both established in 1995, did not make a single
financial reprographic collection during their last financial year according to
documents published on their websites. 87

If the above analysis is not sufficient reason to reject the idea of exporting the RRO
model to least developed countries of Africa (or elsewhere in the South), the
experience with the RRO model in developed countries should provide further
warning. The so-called 'blanket licences' that RROs usually offer to users do not
include such key educational requirements as the distribution of non-profit student
course packs - extra royalties are added for such materials - and the users, such as
schools and universities, bear most of the expensive transaction costs of
administering such schemes. 88 Devoting already scarce educational resources within
poor countries to the administration of such schemes on behalf of foreign right
holders simply does not make economic sense; such schemes have extremely high
transaction costs.

Table: RRO Activity in the Developing World

Country

Name

Incorporated

1st collection

1st distribution

Argentina

CADRA

2002

none reported

None reported

Chile

SADEL

2003

none reported

None reported

Colombia

CEDER

2000

none reported

None reported

Jamaica

JAMCOPY

1998

2001

None reported

Kenya

KOPIKEN

1995

2000

None reported

Malawi

COSOMA

No information available

Mexico

CEMPRO, SGC

1998

2002

2001 (small)

Nigeria

REPRONIG

2003 (operating)

none reported

None reported

Singapore

CLASS

1999

2002

None reported

Trinidad

TTRRO

1995

none reported

None reported

Uruguay

AUTOR

2004

none reported

None reported

Zimbabwe

ZIMCOPY

1995

none reported

None reported

86 Interestingly, the posted CCC's documents do not state how much was distributed to non-
US right holders.

87 Repeated attempts to contact both organisation and discuss their operations were
unsuccessful.

88 Alan Story, 'The Heck with HECA: a critical analysis of the UK's Higher Education
Copying Accord', in K. Brunstein and P.P. Sint, eds. Information property, intellectual
property and the new technologies (Austrian Computer Society, Vienna, 2002). As a result of
the 13 December 2001 decision of UK Copyright Tribunal, the CLA will now be required to
include the provision of course packs within the blanket licence it offers to British universities
and colleges. See more in this dossier, see section 4.6.

43

Denise Nicholson's extensive writings on the situation in South Africa 89 further
expose the severe access problems such schemes create, especially for poorer
students; the problems that illiterate persons face because of the RRO model (and
restrictive copyright legislation) should also be noted. Finally, as textbooks make up
approximately 90 per cent of book publishing in Africa and as such texts are
relatively inexpensive, wide-scale photocopying and distributing of infringing copies
of African-produced textbooks is not a serious problem today. It would be difficult to
reproduce photocopied texts more cheaply than the original; "it costs more to
photocopy books than buy books", said Ghanaian publisher Richard Crabbe in a
2001 interview. As Crabbe also noted, his Ghanaian-based company depresses its
prices further to a break-even basis for export to some of the poorest African
countries. So the creation of a national RRO would not significantly increase the
royalty revenues paid to African-based publishers for the photocopying (or other
reproductions) of their own publications.

Exporting the RRO model to the South

Despite this, the IFRRO is rapidly acting on the 1996 International Publishers
Association resolution, noted above, to create RROs in every country of the world;
the main (almost exclusive) growth area in the intervening years has been in
countries of the South. On the other hand, some of these national organisations still
remain essentially 'shells', operated by a minimum number of personnel - perhaps
only a single person - and with little public presence. Most have made few or no
financial distributions and their financial records (at least those which are publicly
available) do not permit any detailed assessment of their actual operations as is
possible with more developed agencies such as South Africa's DALRO. Only one of
the above new RROs has received any fees from RROs in another country; in its last
completed financial year, CLASS (Singapore) received externally collected payments
totalling €26.89. Still, WIPO is an active supporter of RROs and the organisational
'shells' that exist today could, in time, become more significant earners primarily for
Northern rights holders. DALRO gives an example. In the case of DALRO, it made
payments to other worldwide RROs (primarily for distribution to Northern
publishers) of €404,573 in its last completed financial year, compared to €136,523.07
in 1999; this represents a nearly 300 per cent increase in less than 5 years. In its last
completed financial year, DALRO received €25, 534.22 from other RROs, mostly, one
assumes, for distributions to SA rights holders; this represents an increase of about
€6, 000 over the same period. Conclusion: the disparity in the North/ South revenue
flow is increasing.

At the same time, there is a growing and co-ordinated PR campaign by international
collective management organisations to propound the benefits of their services and
systems; one example is the slick 2004 pamphlet, 'From artist to audience', jointly
produced by the IFRRO, the International Confederation of Societies of Authors and
Composers (CISAC) and WIPO 90 What is particularly significant is the emphasis this
pamphlet puts on the benefits of collective management systems for countries of the
South; of the 13 countries featured in 'From artist to audience', seven are located in
the South (Nigeria, Malawi, South Africa, Senegal, Singapore, Jamaica, and Mexico).
In this pamphlet, Nigeria's REPRONIG, which has yet to make a single distribution,

89 Available in Story, CIPR study, pg. 81.

90 Available at : http://www.ifrro.org/papers/booklet_wipo_cisac_ifrro.pdf

44

is given equal billing - in terms of space and layout - with the Copyright Clearance
Center Inc. of the USA which collects millions of US dollars annually.

An impressionistic sense suggests that RROs currently have little presence in the
collection of revenues in the South from Internet-based print revenues. It appears as
if individual publishers collect such fees themselves through the use of technological
protection measures (TRMs) in combination with digital rights management systems
(DRMs).

At present, the revenues collected and distributed by RROs are far less than the
revenues collected by various music-based collecting societies.

Creating 'copyright cops'

RROs are primarily a creation of the photocopying era and constitute what one
commentator calls 'a 'mass use' (as opposed to a market use e.g. the direct purchase
of a book) of copyrighted works.' 91 As this use is virtually sub rosa, it is "difficult for
rights-holders to know where to start defending their interests." 92 There still is a
significant amount of unauthorised use in the South and the IFRRO, as well as
organisations such as WIPO, are putting forward three messages that will rely
heavily on representatives of users and those tasked within organisations of the
South to police copyright (a.k.a. 'copyright cops').

o respect copyright and support authors (with little mention of the main

beneficiaries, publishers);
o it is your responsibility (not that of rights holders) to pay the steep transaction

costs involved in copyright clearance;
o it is your duty to enforce copyright laws.

The RRO model has the potential to create significantly increased revenues for rights
holders, without any increased expenditures. As mentioned above, it is users who
bear the principal administration costs of such schemes. The expansion of this model
to the South is an attempt to enmesh such countries into the copyright web of
commodification of knowledge and will, in time, generate higher revenues, primarily
for Northern rights holders. In the North, both the term of copyright protection and
the fees paid by existing RRO licensees are based, at least rhetorically, on what is
considered the appropriate level of incentive that is required for the production of
creative works. If copyright policy makers in the North were consistent, the
increased revenues paid by users in the South - for the use of the very same works
produced in the North and distributed in the South at no cost to rights holders -
would lead to a conclusion that the copyright term and RRO fees in the North should
be reduced. It is not a development we should anticipate.

91 Paul Edward Geller, 'Reprography and other processes of mass use/ 30 Journal of the
Copyright Society USA, 21, 1990.

92 Ibid.

45

Collective management and Collecting Societies for music and sound
recordings

Such organisations are increasingly important on a global scale and in the South;
although comparative data is not available, we can safely conclude that they generate
significantly greater revenues than reprographic rights organisations (due to the
widespread dissemination of music and the greater market base - print RROs
primarily collect from educational institutions. In addition, many music-based
cultural industries make collections directly as is discussed in Section 3 of the
dossier.

2.5 How much of this capital flow is related to copyright?

Even analysts writing for publications sponsored by the World Bank, and thus likely
to be defenders of the status quo, concede that the costs of running a national IP
system according to international conventions, especially in the forms taken after the
1994 changes to trade rules, is enormously expensive for developing countries, and
results in a net outflow of capital.

Complying formally with the TRIPS Agreement imposes enormous costs on
developing countries. Not only do they have to set up industrial property registries
that many of them did not have before, but they also have to comply with the
extensive enforcement obligations of the agreement (articles 41-61), which include
border measures (articles 51-60) and criminal sanctions to combat piracy and
counterfeiting (article 61). The high economic cost of compliance is, of course,
compounded by the fact that these countries are net importers of intellectual
property. In hard currency terms, then, compliance with the TRIPS Agreement brings
about an outflow of foreign currency from developing countries. 93

The question then becomes whether these 'enormous costs' are recouped later by
some hypothetical future benefits in the form of innovation. But another key question
is how the net capital outflow is constituted, since such information would allow us
better to evaluate claims of future benefit. Clearly the operations of the RROs,
discussed in the preceding section, offer us some indication of how one mechanism
operates in a relatively small sector with regard to copyright-related payments.

In the case of the South African organisation, DALRO, the Dramatic, Artistic and
Literary Rights Organisation (Pty) Ltd., we have quite detailed figures for the
amounts collected and distributed, published on the IFFRO website (already
mentioned above). From these figures we can see that a very significant proportion
of the fees collected have been distributed abroad.

93 Coenraad J. Visser, 'Making intellectual property laws work for traditional knowledge' in J.
Michael Finger and Philip Schuler (eds.), Poor people's knowledge: promoting intellectual
property in developing countries (Washington DC: World Bank, 2004), p. 208, emphasis
added.

46

FY 2002-2003

Amount in Euros

Amount in Rand

Percentage

Domestic fees collected

R7,918,722.52

Fees remitted from abroad

E25,534.22

R222,944.93

Total income

R8,141,667.45

100 %

Domestic fees distributed in
SA

R2,148,387.80

26.4 %

Domestic fees sent abroad

E404,573.02

R3,532,416.01

43.4 %

Total distribution

R5,680,803.81

Administrative overheads

Not specified

But these amounts are relatively small and specific mainly to the higher education
sector. In order to answer the question usefully and comprehensively, we would
need systematically to quantify several factors. First of all, we should be able to
specify with some accuracy what the total capital outflow in payments for IP rights
is, from a specific country or set of countries, and in a specified time series. Ideally,
this should also be related to the total contribution of the 'creative economy' or the
'copyright industries' to that country's GDP over the same period, and would
include payments attributable to licenses for foreign patents, trade marks, and other
forms of intellectual property. There is in fact data available for such an exercise, but
there are some serious drawbacks, as Keith E. Maskus has pointed out,

[although] royalties and license fees are the most direct measure available of
international earnings on patents, trademarks, copyrights, and trade secrets
[. . . they] are imperfect measures of the value of technology exchange. Within
a multinational firm, the fees charged a subsidiary may depend on
international tax structures. Furthermore, optimal pricing of information is a
complex problem, and receipts of license fees and investment income may be
poor indicators of the economic value of intellectual assets. 94

This is clearly true, especially with regard to copyrighted products. In a country such
as South Africa, which has a functioning publishing sector, foreign books can be
brought into the country in several ways, by direct import of an overseas edition, by
importing sheets to be bound up into a local edition under a local imprint, or by
resetting the book completely. In each case, a certain proportion of the capital
outflow would need to be isolated from other expenses in order to attribute it to IP
rights.

Maskus has published selected data from the IMF's balance of payments statistics to
quantify the flow of royalties and fees in selected cases. However, he points out that
"many countries do not compile reliable and comprehensive data on such flows" 95
and so this kind of analysis is difficult. However, most of Maskus' analysis focuses
on the effect that a strong national patent regime has on foreign direct investment in
developing countries, rather than on copyright issues per se; his interest is mainly in
questions of technology transfer. As he points out, 'intellectual property protection
has taken on increasing importance to multinational enterprises.' 96

94 Maskus, 'The role of intellectual property rights in encouraging foreign direct investment
and technology transfer' in Carsten Fink and Keith E. Maskus (ed.), Intellectual property and
development: lessons from recent economic research (Washington DC: World Bank, 2005),
p.45.

95 Ibid. p.43.

96 Ibid. p. 62.

47

2.6 How 'national treatment' increases the net outflow of capital
from the South

What is national treatment? 97

"The principle of national treatment," according to a leading international copyright
lawyer, "has proved itself as the fundamental principle of copyright and
neighbouring rights conventions for nearly a century." 98 A recent WTO dispute
panel took a similar view as to the centrality of the notion of national treatment for
international copyright relations." First proclaimed at an 1878 authors' conference
that preceded the Berne Convention (the leading international copyright treaty) of
1886, the concept of national treatment became a key feature not only of Berne itself,
but also of subsequent international intellectual property treaties and agreements,
such as the TRIPS Agreement. 100

Sometimes labelled the principle of assimilation, national treatment means "the
complete assimilation [for copyright purposes] of foreigners to nationals" 101 and has
been defined as "a rule of non-discrimination, promising foreign creators who come
within [a] treaty's protection that they will enjoy the same treatment for their
creations in the protecting country as the protecting country gives to its own
nationals." 102

Reduced to its basics, national treatment means equal treatment or equal protection
by the laws of copyright to works owned by nationals and non-nationals alike. Here
is how it works in practice: Assuming that countries X and Y are members of the
Berne Convention (and given that there were 160 members as of January 2006,
including all the 'major' countries in the world, this is usually a safe assumption), if a
resident or citizen A of country X produces a work in X that is also used in country Y,
the work of A must be protected in Y on the same legal basis as the work of writer B
(who is a resident/ citizen of Y) in country Y. To use the same example and apply it
to the question of copyright duration/ term, all works in Y - whether produced by A

97 This article draws heavily upon Alan Story, 'Burn Berne: Why the Leading International
Copyright Convention Must be Repealed/ 40 University of Houston Law Review, 763 (2003).

98 Stephen M. Stewart, International Copyright and Neighbouring Rights (2d ed. 1989), p.42
(emphasis added). Other commentators have discussed the 'pervasiveness' of the principle of
national treatment in Berne, as evidenced by the fact that there are only three exceptions to
national treatment in Berne), stated that 'border-preserving rule of national treatment remains
the cornerstone of Berne and its successor agreements' and concluded that national treatment
provides 'the basis' of Berne, as well as of the Paris Convention which deals with patents and
trade marks.

99 See WTO Appellate Body Report on United States - Section 211 Omnibus Appropriations
Act of 1998, §240-242, WTO Doc. WT/DS176/ AB/R (Jan. 2, 2002).

ioo Article 3, TRIPS Agreement (stating that member nations shall treat each other equally
'with regard to the protection of intellectual property').

101 Stephen P. Ladas, The International Protection of Literary and Artistic Property, Vol. 1
(1938) p. 365.

102 Paul Goldstein, International Copyright: Principles, Law and Practice (Oxford: Oxford
University Press, 2001), p. 72.

48

or B - must have the same duration of copyright in Y (for example, life of the author
plus 50 years, or plus 70 years (e.g. in the US or the European Union) or plus 100
years (e.g. which Mexico has recently done under US pressure). 103

As for the philosophical or political justification, national treatment is viewed as
being "in accord with the ideal of international law that all men [sic] are equal before
the law, regardless of whether they are nationals or foreigners." 104 So, on one level,
the concept of 'national treatment' appears to be promoting the laudatory values of
equality and non-discrimination, especially against non-nationals. However as the
US Supreme Court concluded in another context, "[sjometimes the grossest
discrimination can lie in treating things that are different as though they were exactly
alike." 105 In one 1966 International Court of Justice case, a judge recognised that if a
valid case can be established for what is called 'differential treatment', a court must
necessarily, as a matter of justice, take steps to act on this difference; as Judge Tanaka
wrote: "To treat unequal matters differently according to their inequality is not only
permitted but required." 106 Berne Convention jurisprudence, however, rejects this
approach. As a result, here is what the concept of 'national treatment' means, in
practice, for all countries of the South: for the country of Tanzania, for example, all
cultural goods (fiction, films, etc.) which are produced either domestically, regionally
(say within East Africa) or in any country covered by the Berne Convention ( e.g.
USA, UK, Japan) must all be treated alike for copyright purposes, no matter how
different are the conditions in which they are produced, the importance of the works,
the national priorities set for their use, etc. 107

To conclude: What international copyright regimes attempt to do is reduce and
homogenise all forms of cultural production to a single, one-dimensional property
phenomenon, that is, to a capitalist commodity, and then proclaim the essential
equality of all commodities in the global marketplace. All other aspects or
characteristics of such production are neglected, indeed suppressed. From this we
can draw two basic conclusions: First, it is incoherent to argue that countries of the
South must, for copyright purposes, recognise within their own borders the formal
legal equality of all cultural and artistic creations produced across the globe when, on
so many other dimensions, there is extreme inequality and disparity in the
conditions of production and use across the globe. Second, national treatment does
not work in the interests of countries of the South, but rather reinforces the power of
rich industrialised countries and their rights holders. Laws mandating national

103 Note: On the question of duration, the EU does NOT actually follow this practice; it does
discriminate against countries that do not have the same high standard of life of the author,
plus 70 years, but this is an issue beyond the scope of this section.

104 Stewart, op cit. at p. 38.

105 Jenness v. Fortson, 403 U.S. 431, 442 (1971).

106 South West Africa (Dissenting Opinion Tanaka), Second Phase, Judgement. ICJ Reports
(1966) 6, at p. 306. As Judge Tanaka explained on pp. 303-304: "The principle of equality
before the law does not mean the absolute equality, namely the equal treatment of men
without regard to individual, concrete circumstances, but it means the relative equality,
namely the principle to treat equally what are equal and unequally what are unequal."

107 There is an exception that may be used in certain special cases, the so-called Berne
Convention 'three-step test', but it is of extremely limited use by countries of the South and
beyond the scope of this section. See Section 4.12

49

treatment may encourage formal equality, but reproduce substantive inequality. 108
Indeed, it is the private intellectual property rights of the richest nations and richest
rights holders that are one of the leading sources of the current inequality between
rich and poor nations. It is in the very act of upholding and enforcing these private
property rights that these inequalities are deepened.

The economic effects of 'national treatment' on the South, especially
with regard to capital flows

For copyright-protected cultural goods produced in rich industrialised countries
(and this is where the majority of such goods are produced globally, as was detailed
in Section 2.2) and used in the South, the 'national treatment' requirement ensures
that, at least in terms of copyright, such works cannot be subjected to any tariff-like
protection favouring or giving an advantage to domestically-produced goods. Thus,
to take one example, the collection and flow of copyright royalty payments is
unencumbered. Indeed, the 'national treatment' approach very much acts on a
borderless, 'the whole world is one market', and pro-globalisation orientation. For
example, a country in the South might decide that, to build up its own domestic
cultural industries, it would need to give privileged treatment to domestically-
produced goods. Or such a country might decide that translation of (or into) certain
languages should get favoured treatment. Or such a country might decide that 'fair
dealing/ fair use' copyright provisions might operate differently for domestic vs.
foreign works. Or, to give a final example, a country in the South might decide to
have different policies re: payment to collecting societies for domestic copyrighted
goods compared to foreign goods. 'National treatment' would, at least in theory,
block any of these policy options for a country in the South. (However, as there is
very little jurisprudence on such issues, it is difficult to say for certain how a WTO
dispute settlement panel would rule on such issues.)

Conversely, cultural goods produced in the South and used in the North gain little
from 'national treatment' in the North because there is - for a wide number of
reasons - a relatively small market in the North for such goods. And if 'national
treatment' is not followed for Southern-produced goods in the North, it is unlikely
that Southern creators would know about such discriminatory treatment or have the
resources to challenge it.

In the same vein, it needs to be appreciated that when a country such as Mexico
raises its duration of copyright to life of the author, plus 100 years (this means that if
a work is produced in 2005 and the author dies in 2055, copyright extends until 2155
- or 150 years after publication) and when it is required that Mexican and non-
Mexican authors get equal protection, it will be non-Mexican authors that will be the
main beneficiary of such protection. Why? Because they are so much more numerous

108 Speaking about the conditions existing in Paris in 1894, Anatole France wrote, in his well-
known phrase, that it is "the majestic equality of the laws, which forbid rich and poor alike to
sleep under bridges, to beg in the streets, and to steal their bread." Anatole France, The Red
Lily 95 (Winifred Stephens trans., 1930) (suggesting that if 'unalikes' face equally enforced
laws, enforcing laws that go to the very nature of their 'unalikeness' or difference result not in
equality but substantive inequality).

50

and produce far more economically valuable works. Indeed, this is why the US put
pressure on Mexico during recent free trade talks to extend its copyright duration. 109

The overall result: cultural goods which are already more economically valuable and
in demand (e.g. US soap operas in Latin America) will be the main beneficiaries of
national treatment; the biggest producers of copyright-protected works have far
more intellectual property to protect.

109 p or more on duration of copyright, see Section 4.2.

51

SECTION 3 - PRIVATISING THE PUBLIC DOMAIN AND
IMPOSING WESTERN/NORTHERN ASSUMPTIONS
ABOUT CULTURAL PRODUCTION

3.1 Introduction

"The West has consistently sought to impose intellectual property laws on
developing countries and indigenous populations with no notion of
intellectual property as conceived in the West." 110

The first two sections of the dossier have examined privatisation issues more
generally as well as the global economics for the South of copyright and its
accompanying ideology. In this section we turn our attention to questions centred on
cultural production and the commonly-held assumption, championed by
organisations such as World Intellectual Property Organisation, that - to put it most
directly - a community, a country, or a region cannot have significant cultural production
without a strict copyright regime.... and indeed, the stricter the regime, the better and more
diverse will be the levels of cultural production, whether in music or art or any of the
other myriad forms of cultural production.

This is certainly a widespread assumption. For example, the well-known US legal
academic Larry Lessig begins one of his books, The Future of Ideas, with a brief
anecdotal discussion of the work of a US documentary film director Davis
Guggenheim. Lessig mentions "the ordinary and reasonable" role that the copyright
system plays in the production of films and then, as one of his operating premises,
writes that "without such a system we would not have anything close to the
creativity that directors such as Guggenheim have produced." ni But as another
academic commentator states in the quotation above, copyright is far from a
universal phenomenon and imposing Western conceptions of copyright has a long
history across the global South. Many 'missionaries' have uncritically accepted,
spread, and reinforced the view that awarding copyright to creators is the necessary
incentive - as well as the best incentive - required for the creation of cultural forms.
This section attempts to challenge this view which, among other things, is a Western
(or Eurocentric) conceit based on a narrow 'centre-of-the-world' mentality; it denies
the many cultural forms in the South which have been created for centuries in the
South without any concern as to whether such works were or were not protected by
copyright laws.

Section Three begins with a brief explanation of the values infusing copyright
regimes, such as individualism and the presumption that all cultural goods should
be conceived, first and foremost, as mere marketable products. This section then
provides a number of examples from across the South, including Asia, the Arab

110 Daniel Burkitt, 'Copyright culture-The History and Cultural Specificity of the Western
Model of Copyright', 2001 Intellectual Property Quarterly, 186.

111 Lawrence Lessig, The Future of Ideas (Vintage Books: New York, 2002), p. 3.

52

world, Africa, and among indigenous peoples, where traditional copyright
conceptions have certainly not been the incentive for the rich cultural production that
exists. We then examine the question of so-called copyright 'piracy' and the
quickening pace in which the public domain is itself being 'pirated' and privatised.
The section continues by raising questions such as why we should doubt that
copyright laws, which have served cultural workers, such as musicians, in the rich
developed countries so poorly, will be of great assistance to the majority of musicians
and other artists from the South. Other than a few 'stars' and a few multinational
recording companies, who will benefit? Section Three concludes with a detailed look
at how WIPO, the United Nation's richest agency, is relentlessly working to export
the copyright system and its values to the global South.

3.2 The basic values and ideology of copyright

As a system, copyright is far more than a set of complicated domestic legal rules or the words
contained in various international agreements and conventions. And it is also much more
than a mere economic calculus used by the owners of copyrighted materials to accumulate
wealth (or, sometimes by authors and artists, as a way of protecting and getting payment for
their labour.) Rather, copyright represents one possible answer - and there are many
alternative answers - to a wide range of questions: how do cultural, artistic, and literary
objects get produced? By whom? For what reasons? And for whose benefit? Copyright thus
represents a wide-ranging value system and it encompasses a set of philosophical
justifications as to why this Western-based system should continue both to exist and to
expand in its global reach and power.

The initial article in this section of the dossier examines what we are calling 'the values and
ideology of copyright', namely, individualism, commodification, reward, and consumerism. 112
In the case of countries of the South, they are values which are daily being transplanted and
implanted by rich countries of the North to justify the overturning of long-standing and
alternative approaches to cultural production that are discussed in later articles throughout
this section.

Individualism

Individualism extols as valuable the creative effort of an individual 113 and the
protection of intellectual property, in this instance copyright, is seen as constituting a
basic right of the individual. 114 The justification for this approach is often sought
from John Locke's theory of natural law positing that a person's effort or labour gives
rise to an individual property interest. 115 Locke's theory has helped shape

112 This is a brief and 'popular' treatment of what are a number of complicated philosophical
and political questions. For further reading, see some of the articles available on the open
access Kent Law School Intellectual Property Resource Pages at:
https://www.kent.ac.uk/law/undergraduate/modules/ip/resources/Opening.htm

113 M. A. Hamilton, 'The Trips Agreement: Imperialistic, Outdated, and Overprotective', in A
.D. Moore (ed.), Intellectual Property: Moral Legal and International Dilemmas (Lanham,
M.D.: Rowman & Littlefield, 1997), p. 243.

114 Ibid., p. 258.

115 J. Locke, The Second Treatise of Government, edited by Thomas P. Peardon (Indianapolis:
Bobs-Merrill, 1952), sec. 26-7, 44 [1690]; H. C. Hansen, 'International Copyright: An Orthodox

53

individualism as it is known today by annexing rights to personage, the result of
which is to invoke ownership. The property right in the copyrighted work is said to
arise out of the direct relationship between an individual and the creation. Indeed,
copyright doctrine states that a song or a poem acquires legal protection only if it is
the work of an identifiable author. Joint authors, but also identifiable, or an
anonymous author may suffice in some circumstances, but authorship of some type
is a pre-requisite. Moreover, it is not coincidental that the first article of the Berne
Convention states that its sole purpose is "the protection of the rights of authors in
their literary and artistic works." Copyright is considered as having no wider social
purpose or common goal, such as education or cultural diversity, and there is
supposedly no other source of creativity except that of the individual author.

In France and in some other countries of Europe, copyright has an additional
purpose, again a highly individualised one: the protection of the droit moral or the
author's moral/ personal right. Here what is at stake is not property or money or
financial considerations which are the single-minded focus of the Anglo-American
copyright system. Instead, what is being protected is the individual author's
personality. Derived from the writings of the continental European philosophers
Hegel and Kant, this 'personality theory' or justification for copyright argues that all
creative works produced embody (or personify) the spirit (or mind) of the individual
creator. In fact, this theory argues that there is indivisibility' between the works
created and the person who created them. As a result, an 'injury' to creative works,
for example, an unauthorised use or infringement, is considered an 'injury' as well to
the individual creator's personality; they are seen as a synonymous 'injury'.

It is little wonder then that the rights and prerogatives of the individual author are,
at least in theory, accorded such a central place in copyright law and ideology.

Commodification

Why are songs composed, books written, or photographs taken? There are at least
two reasons, among others. One rationale is that such works express the creative
urges and aspirations of individuals and of wider societies. They are produced to
communicate thoughts, to solve problems, to teach others, to express ideas and
feelings and emotions. Collectively, they are part of the common heritage and culture
of groups, of communities, and of nations. A competing view or rationale is that
songs and books and photographs are commodities produced for the purpose of
exchanging them for something; they are property, albeit intangible property,
created primarily for trade and for commerce.

The need for copyright laws is intimately linked with this second rationale, a process
commonly known as 'commodification'. The further linking of the production and
use of creative expressions, such as books, with the mechanisms of world trade, was
the underlying purpose behind the 1994 Agreement on Trade-Related Intellectual
Property (italics added), popularly called the 'TRIPS Agreement.' As such, TRIPS
represents the latest (and highest) stage in the commodification of the production
and use of songs, books, photographs and a myriad of other literary, artistic and
cultural objects that are copyrighted, both domestically and globally.

Analysis' in, A .D. Moore (ed), Intellectual Property: Moral Legal and International Dilemmas
(Lanham, Maryland, USA: Rowman & Littlefield, 1997), p. 267.

54

"Intellectual property laws with
their epicentres in Washington,
New York, Brussels, and Geneva
travel like invisible tsunamis to
developing countries. There they
turn the national innovation
systems of those countries into
so much dust."

Peter Drahos, 'Cities of Planning
and Cities of Non-planning:
Geography of Intellectual
Property, ' World information- IP
City Edition, November 2005.

,

At first glance, individualism, the first copyright

value explained above, and commodification may

appear to be in conflict with one another. But in

capitalist terms, the two perfectly compliment each

other. Here is how the process works:

Commodification consists in the dissociation of

goods from their producers in order to facilitate the

passage of these goods into the stream of

commerce. As a result, the creator of the product

need not be the owner or distributor of that

product. And so while the 'personality' of the

individual is disassociated from the intellectual

goods she or he has created, what happens, at the

same time, is that the 'propertising' of ownership

rights occurs under the initial (but usually not

subsequent) control of a single individual; this process transforms a literary or

artistic work into a commodity which can then be amortised in the marketplace by

maximising distribution and hence, profits. 116 In short, personality is converted into

capital. Or to explain the process more fully, we need to appreciate that when

intellectual property-based goods pass through the domestic and increasingly global

channels of commercial production and distribution, they are stripped of the persona

with which they were individualised when they were made. They are retailed merely

as capital goods and usually as the property of some corporate or other commercial

entity; they are not under the control of a single individual.

Reward

As items of commerce, copyrighted goods can be exchanged for profit. But why are
they created in the first place? The standard argument pro-copyright commentators
provide is that, without the financial reward or incentives provided by copyright,
such works would not have been created. In the same vein, establishing a lengthened
duration for copyrighted works is seen as giving creators an increased incentive to
produce works; as a consequence, they will supposedly create more and better
works. So incentive as reward is a third integral tenet of the copyright scheme. (What
is ignored, we note in passing, is that many of the greatest works of literature and art
were - and are being - created without any reference to copyright incentives; one
thinks of the many plays by the English dramatist William Shakespeare or dazzling
Yoruba art from Nigeria.)

The result of this 'reward the creator' orientation is that society is held to be
monetarily obliged to authors, composers, and artists. And this process is said to be
linked with the quality of the products we can purchase and use for a price. To be
rewarded, products originating from individual creators must supposedly be singled
out on the basis of their quality; this is done by granting the owners proprietary
rights over them. 117 Ideally, unless the product can be said to be creative, it cannot

116 Akalemwa Ngenda, 'The Nature of the International Intellectual Property System:
Universal Norms and Values or Western Chauvinism?', Information & Communications
Technology Law, Vol 14. 2005, pp. 59-79.

117 Hamilton, op cit., p. 245.

55

attract such reward. This operation has become the measure of appreciation and
recognition in the eyes of copyright law, vis. a vis., remuneration.

Consumerism

After visiting a book store or a music CD shop in a large North American or
European city at Christmas time and seeing their overflowing shelves, one can
certainly ask: do we really need 25 crime novels by the same author or 25 more CDs
from the same band? Meanwhile, many valuable books we actually do need are no
longer in print or are far too expensive. . . and certainly too expensive for the budgets
of most people and most libraries in the South. Meanwhile, a great deal of good
music that does not make it into the bland mainstream pop charts cannot be found.
But making greater profits in the marketplace, not fulfilling human needs, is what
dictates the marketing of copyrighted commodities. Twinned with this is another
requirement: more and more and more and ever more books must be produced,
marketed and sold.

At the same time, it is a common feature of consumer culture that the impetus for
purchasing goods is more often than not largely motivated by reasons and purposes
other than function or utility. As one commentator explains, "consumer culture is a
particular form of material culture that. . . emerged in Euro-American societies during
the second half of the twentieth century", continuing that "consumption is always a
cultural as well as an economic process." 118 Consumers can largely be distinguished
from mere buyers in that the former chiefly buy "to sustain their sense of
psychological well-being" or "to signal status." 119 Copyright protection of the most
promoted, the most fashionable, and the most 'talked about' song or movie or crime
novel entrenches these values and consequently leaves consumers susceptible to be
influenced through the market by those whose purpose it is to control and maximise
profits.

In the current era, the link between consumerism and copyright is becoming ever
firmer; as media theorist Herbert Schiller explains, "cultural production, in its basic
forms and relations," is becoming "increasingly indistinguishable from production in
general." 120

3.3 The differing traditions of cultural creation in the South

One of the central assumptions of Western copyright law and ideology is that the creation of
stories or songs or artistic works requires a single author who conjures up works of literature
or music or art through a stroke of individual genius. Such works are unique and original, it
is claimed, and this approach to creativity, it is further claimed, is a universal one. First and
foremost, such works must be commodities that are owned and produced for sale in the
national and international marketplace. Hence, the need for a global copyright regime to

118 Celia Lury, Consumer Culture (Cambridge: Polity Press, 1996), p. 1 and p. 51.

119 See S. L. Winter, 'What Makes Modernity Late?' (2005) International lournal of Law in
Context, 1(1) 61-80.

120 Herbert I. Schiller, Living in the Number One Country: Reflections from a Critic of
American Empire ( New York: Seven Stories Press, 2000), p. 62.

56

protect authors and their individual copyrights because well, 'that's the way it's done in the
West'

Yet all across the global South there are many radically different traditions of creativity. Some
stretch back many centuries. Others are widespread across entire regions, while others are
more localised. Here are some examples, put together in no particular order and in rather
eclectic fashion, which give a few artistic 'snapshots' rather than providing a comprehensive
picture. More examples are found in the following two articles on Arab culture and the
traditional knowledge of indigenous people.

The story teller of Peshawar 121

The chattering comes to an intuitive halt; the room becomes motionless and an eerie
silence envelops the air. Khan Baba steps in, unaided even in his old age, he is the
embodiment of a proud Pathan. 122 A pristine white beard flows from a face, wrinkled
through age and physical hardship; his eyes though are a testament to his blazing
spirit. A word is yet to be spoken; Khan Baba instead relies on his eyes to relay
warmth. The bustling market seems to have sensed the occasion, the buses and the
rickshaws seem no longer to be there. Khan Baba finally greets his audience, orders
some tea and gets into an inane conversation with those around him; a veteran of the
art, he teases the anxious audience. Finally he begins; it is going to be a story of
passion and love, war and death, with a smile he adds 'about all the good things in
life'.

This is the story of a story-teller, Khan Baba, who belongs to a dying breed of men,
anxious to hold on to the last remnants of their heritage. . .storytelling. They ply their
trade in the Qissa-Kahani 123 Bazaar, in Peshawar, Pakistan which is located on the
border with Afghanistan and which has, for centuries, served as the bridge between
Central Asia, Persia, and India. It is in Peshawar that traders and travellers, men of
science and men of war, travelling through the Khyber Pass and the Silk Route have
stopped and relayed their stories for hundreds of years in tea shops dotted around
the Bazaar. These tea shops are a relic to a bygone era, but even today they serve as
an ancient repository of stories and memoirs. Khan Baba recalls the story of his
grandfather who would die fighting the British in a bid to retain the 'smallest piece
of land' in the whole region. This story of valour will probably never be written, not
that Khan Baba would mind such a thing. He simply chooses not to care. To him a
story can never simply be read, it must be listened to and then passed on through the
generations. When it comes to these stories, there is no concept of ownership or of
uniqueness; there is however a concept of sharing one's experiences and of imparting
knowledge; for these stories are considered to be the collective wisdom of the
Pathans. The story tellers consider themselves to be guardians of an ancient tradition,
and by recalling the stories of their lives, and the lives of their forefathers, they keep
their history alive.

121 This is a personal account of a trip to Peshawar undertaken in August 2004 by a university
student Ali Khan. Thanks to Ali for his contributions to this section (and others) of this
particular article.

122 The indigenous people of Northwest Pakistan and parts of Afghanistan.

123 jhis literally translates into 'story and tale'.

57

Australian aborigines

Many different cultures and civilisations strongly believe that knowledge is
something to be shared amongst all people and should not be confined to those who
can afford to gain knowledge. The Australian Aborigines, for example, have no
Western concept of originality. In aboriginal culture, art is not defined by originality,
no matter how distinct it may be, but by the correct representation of ancestral
traditions, known as 'the Dreaming.' 124 The stories which constitute the Dreaming
carry the truth from the past together with the code of Law, which operates in the
present. The Dreaming consists of the natural world, especially the land or county to
which a person belongs, and hence it is the person who belongs to the Dreaming and
not the dreaming to the person.

In our ceremonies we wear marks on our bodies, they come from the dreaming
too, we carry the design that the Dreamings gave to us. When we wear that
Dreaming mark we are carrying the country, we are keeping the Dreaming
held up, we are keeping the country and the Dreaming alive. 125

The Masai warriors of East Africa

The philosophy of a collective pooling of knowledge through storytelling is shared
by the Masai warriors of the African savannah. The Masai, like the Pathans do not
seek to commodify knowledge and profit from its ownership. Rather, it is much
more important that their stories are remembered and survive, even when they do
not. This concept of authorship has evolved over thousands of years and has become
an important vestige of Masai heritage.

It is only the story that can continue beyond the war and the warrior. It is the
story that outlives the sound of war-drums and the exploits of brave fighters.
It is the story that saves our progeny from blundering like blind beggars into
the spikes of the cactus fence. The story is our escort; without it, we are blind.
Does the blind man own his escort? No, neither do we the story; rather it is
the story that owns us and directs us. 126

Algerian raV music

The artist and the inventor often proceed from the work of predecessors. A good
example of this type of artistic continuity is Algerian rai' music. (Other examples are
traditional and popular music cultures such as calypso, samba, and rap from Latin
America and the Caribbean.) In writing about rai' music, Bouziane Daoudi and Hadj
Miliani emphasise "that the same theme may know as many variations as there are
performers." The base is shared knowledge, which refers less to a repertoire of

124 The Dreaming tells of the journey and the actions of Ancestral Beings who created the
natural world. The Dreaming is infinite and links the past with the present to determine the
future, <http://indigenousaustralia.frogandtoad.com.au/story.html>.

125 A Yanyuwa man from the Gulf of Carpentaria, Mussolini Harvey, describing the link
between body painting and the Dreaming.

126 Chinua Achebe, Anthills of the Savannah (New York: Anchor Books/ Doubleday, 1988)

58

existing 'texts' but more to a whole of social signs, such as el merioula, el mehna, el
minoun, and eltar. 127

Rai' has no true 'author' in the Western copyright sense of the term of 'authorship'.
Until some years ago and before it entered the Western market, the singers
'borrowed' songs or choruses from each other. The public added words
spontaneously to a song. Theft, pillage, and plagiarism of texts do not exist as far as
these singers, known as the chebs

and the chebete, are concerned. It is a
form of music that depends heavily
on influences from the immediate
circumstances, period, place, or
audience. Bouziane Daoudi and
Hadj Miliani describe the rai' as a
"continuum of a strongly perturbed
social imagination." 128

African music

"[t]he range of Western beliefs that define
intellectual and cultural property laws... are not
universal values that express the full range of
human possibility, but particular, interested
fictions emergent from a history of colonialism that
has disempowered many of the world's peoples."

Rosemary J. Coombe, The Cultural Life of
Intellectual Properties: Authorship, Appropriation,
and the Law (Durham, North Carolina, US: Duke
University Press, 1998) p. 247

Even when copyrights are applied in
many non-Western cultures, it soon becomes clear that the ideology sustaining the
system does not work when you consider the complexity of the creative process. In
the Western world, there exists a sharp division between the composer and the
performer in the case of music. This is not so, however, in African music, which
according to John Collins, is usually associated with many more aspects than only
the music. Thus, in this case, "royalty-accruing components.... should, in the name of
creative equity, be divided into four: the lyrics, the melody, the rhythm and the
dance-step with the melody further divided into various contrapuntal or cross
melodies and the polyrhythm into its multiple sub-rhythms." 129 However, this is not
all: "in African performing arts the audiences often have a creative role too, as they
chant, clap and perform dance-dialogues with the musicians." Obviously all of these
elements change for every performance and, as a result, every performance is
changed. It is clear that the individual allocation of copyrights cannot work. After all,
"how does one measure the degree (and value) of 'originality' in a continually
reworked piece of music?" 130

The literature of China and Japan

Asian countries such as China and Japan both have long literary traditions in which
copyright played no part. As one US intellectual property lawyer put it, "in Asian
cultures, inventions are freely disclosed, copying is a high form of flattery, and the
individual is subservient to the community." 131 The title of a book by William P.

127 Bouziane Daoudi and Hadj Miliani, L'aventure du rai': musique et societe (Paris: Editions
du Seuil, 1996), p. 126-9
i 28 Ibid.

129 John Collins, 'The problem of oral copyright: the case of Ghana', in Simon Frith (ed.) Music
and Copyright (Edinburgh: Edinburgh University Press, 1993) p. 149-50.

130 Ibid.

131 Arthur Wineburg, Jurisprudence in Asia: Enforcing Intellectual Property Rights, 5
University of Baltimore Intellectual Property Law Journal, 1997, p. 25.

59

Alford captures the same sense: 'To Steal a Book is an Elegant Offence: Intellectual
Property Law in Chinese Civilization. ' 132

Here, for example, is one view of the traditional Chinese approach. Since all artists
are considered in Confucian philosophy to be a special breed within humanity, the
ideals of originality must surely be universal. Are we then to say that someone who
muses that "I transmit rather than create; I believe in, and love, the ancients" is not worthy
of being an artist? This is a saying of Confucius 133 and it would be hard to deny that
he was a creative genius or his work not worthy of being an original 'literary work'.

In traditional Chinese literature citing the ancients is the "very method of universal
speech" 134 and the reproduction and copying of already existing work never had the
same 'dark connotations' as it had in Europe or the United States. The same is true in
Chinese painting and calligraphy. The artistic process was viewed as a spiritual one
and the commodification of knowledge is a notion that is simply unacceptable in the
Chinese tradition. 135

Another commentator explains that "inventing a product or authoring a work of art,
is an accomplishment of the family and the community, and is expected to be shared.
Advancing, learning, and creating works are in the public domain, and are not
considered objects privately owned by persons. Asians traditionally learn by copying
the wisdom of their elders and ancestors. Making money by writing a book is not
considered an honourable endeavour for a learned person." 136

The idea of paid copyrights is also foreign to Japanese culture. Japan had to change
its copyright law in 1996 under pressure from the US. The International Herald Tribune
reported at the time that, "current Japanese copyright law does not protect foreign
recordings made before 1971, meaning that Western record companies, by their
estimates, are losing millions of dollars a year in royalties from the copying of tunes
that are still highly popular." The headline of the article on this matter in the
International Herald Tribune read: "US take music-piracy charge against Japan to
WTO." 137 This is curious: a cultural difference (that is, a different opinion about how
long rights should hold) has been interpreted as 'piracy'.

Toru Mitsui explains that the basic conception of copyright has become familiar in
Japan mainly through newspaper coverage of copyright issues concerning records,
tapes, and computer programs. "But still the Japanese people do not take well to
copyright, or more properly, to the idea of the individual right. Generally speaking,
to claim one's right is regarded as dishonourable or undignified, especially when the
right involves money." 138

132 Stanford, Ca. USA: Stanford University Press, 1995.

133 -phe Analects of Confucius. Translated by A. Waley (New York: Macmillan, 1938).

134 Daniel Burkitt, 'Copyright culture- The History and Cultural Specificity of the Western
Model of Copyright', 2001 Intellectual Property Quarterly, 177.

i 35 Ibid.

136 Wineburg, p. 26.

137 International Herald Tribune, 10/11 February 1996.

138 Toru Mitsui, 'Copyright and music in Japan', in Simon Frith (ed.), Music and copyright
(Edinburgh: Edinburgh University Press, 1993), p. 141-142.

60

Indonesia and its culture

Across rural parts of Indonesia (where most Indonesians live), the governing laws
are known as 'adat' or customary law. Most such laws in the fourth most populous
country in the world do not make a distinction between tangible property, such as
land, and intangible property, such as that which might exist elsewhere in a book or
song, and adat law "does not accommodate intellectual property law" and, for
example, does not recognise the sale of intangible goods. 139 As a result, attempts to
enforce copyright laws and their accompanying ideology are likely to fail in crafts
such as batik; traditions of creativity are not the same in Indonesia as they are in
Indiana. As one writer explains, " Indonesian traditional communities often create
for reasons which preclude commercialisation. Some see their work as a symbol of
dedication to art itself or a national treasure. . .Many local creators are happy to allow
their works to be imitated and duplicated without their consent and are proud... if
their works are copied, often because they believe that they have assisted the
community in some way." 140 For example, a singer of traditional Indonesian music
was very happy when his music was copied en masse in 1997 and was reported not
to be interested in launching a copyright infringement action.

3.4 Culture and creativity in the Arab countries

Because of its non-material (or intangible) character, the concept of intellectual
property is a new and foreign one to most cultures across the globe. Intellectual
property emerged with the development of industries that heavily depended on
innovation; ideas were made more valuable than the materials that were used for
disseminating and reproducing them. The concept of intellectual property is also
closely related to the concept of individuality and capitalist-based societies that
cherish individualism were responsible for introducing and adopting it. But
traditional societies kept regarding it -and many still do - as a very strange and
foreign concept.

Islam, for instance, emerged in a merchant society, where the concept of property
was the basis of economic activity. Obviously, at this time, a merchant society was
concerned with material property and the necessity of respecting this type of
property has been stated in the Koran. By contrast, the concept of intellectual
property is today subject to debate among Muslims because it contradicts
community interests. As in other traditional societies, individual interests are
secondary to those of the wider community. Such societies commonly consider
knowledge as something that cannot be the private property of an individual and,
moreover, that no one can or should prevent others from benefiting from knowledge.

Although intellectual property considers cultural production as solely an individual
achievement, traditional forms of artistic expressions, such as those occurring in the
Arab world, do not fit into this scheme. Here are a few examples:

139 Simon Butt, 'Intellectual Property in Indonesia: A Problematic Legal Transplant', 24
European Intellectual Property Review 2002, 429, p. 434.

140 Ibid. p. 434.

61

a) Lebanese folk poetry, known as Zajal, is performed in a public challenge between
two groups of poets who improvise short poems satirising each other; each group
bases its inspiration on a sentence presented by the opposing group. In this
traditional competition, the creation involved is a collective process developed
through dialogue.

b) Traditional Arabic music, especially that which uses the 'Oud' (a kind of lute), is
mainly based on improvisation during a live performance and is very similar to a
conversation between two of more persons. Music is performed by a 'takht', a
small group of musicians capable of improvisation on one theme. Each musician
builds on what the last person played; the musicians wander, move away, and
then come back to the main theme.

c) In solo singing performances, a dynamic interaction arises between the singer
and his or her public. A kind of musical listening emotion, called 'Tarab', creates
a very special atmosphere which inspires the singer; this environment seems to
be the main determinant of the success of the performance.

"Developed countries underestimate the degree to
which local institutions, traditional ideas and social
values will resist a wholesale acceptance and
application of the philosophy of intellectual
property rights...."

Ruth Gana, 'Prospects for Developing Countries
Under the TRIPs Agreement, 1999, 29 Vanderbilt
Journal of Transnational Law, 774.

There are additional contradictions.

Intellectual property is based on a

clear definition of authorship,

particularly individual authorship,

and draws on, indeed establishes, a

division of labour between creators

(composers, performers, authors,

etc.). This distinction is not,

however, an adequate one for the

actual process of creation involved

in many forms of expression.

Creative works are produced by finding inspiration in previous works and by

borrowing various phrases and expressions from them. In such cases, the Western

conception of authorship is not an accurate or applicable one. During improvisation,

Arab musicians recall musical phrases from a common heritage, found either in the

public or private domain. Putting limitations and restrictions on this kind of

inspiration by the privatisation of this heritage could lead to sterilizing the creative

process.

Modern forms of expression began and flourished in Arab countries by borrowing
from Western productions. Theatre, for example, was not part of the Arab tradition
and began in Arab countries by translating and adapting French and English plays.
Many Egyptian movies were inspired or directly adapted from American films of the
1940s and 50s. Caricature developed in Arabic newspapers by borrowing figures and
scenes from one another or sometimes from Western newspapers. These borrowings
were integrated in the Arab culture, thereby helping it to renew itself.

Some works are considered by a society as a common heritage, even though their
creator is still alive. For the Palestinians who have lost their country, poems are the
main expression of their national identity; the poems of Mahmoud Darwiche, for
instance, played a major role in the construction of a national consciousness. His
poems constitute a common heritage and are told by nearly everybody at any
occasion. Many composers put his poems into their musical works without even

62

asking for the consent of the poet who, in turn, never asked them for any royalties.
To make such claims would be considered rather unethical. When the poems of
Mahmoud Darwiche are put into music and sung by Marcel Khalifah or any other
great Arab musician, this process results in increased popularity for both the poet
and the composer. The personal benefits are shared by both the composer and the
poet and this seems to be enough to motivate them to further creativity.
Furthermore, if the primary motivation for creation is the diffusion of a message, the
objective is far better achieved without imposing intellectual property rights and
restrictions.

Copyright is not a pre-condition of creativity

In fact, we can say that copyright law is not a necessary pre-condition for creative
works to be made. Nor are Western conceptions transferable because the context is
very different. In the Arab tradition since the pre-Islamic period, poetry was usually
subject to public competitions and performances without any financial incentives
available. In the contemporary period, publishers in the Arab book industry often
omit to pay royalties to authors whose works they have published. In order to avoid
paying 10% to 12% of the proceeds which are due to the author, the publisher does
not declare the actual number of reprints that have been made. Although writers
often complain justifiably about the dishonesty of publishers, this does not
discourage them from writing and editing. Even a famous writer like Nagib Mahf ouz
needs to have a regular job and a salary; he cannot live from the proceeds of his
work, although many of his books have been turned into very successful films. Even
though royalties paid to authors are small when compared to other kinds of
royalties, especially those available from translation work, intellectuals prefer writing
their own works rather than translating works written by other authors. In other
words, they prefer seeking 'fame' instead of monetary rewards.

Meanwhile in the music sector, it is impossible to stop widespread 'piracy'. Some
Lebanese musicians put their recordings on the market at a very low price so that
they can be certain that the musical quality of the recording remains acceptable. Yet
even this practice does not succeed in restraining the market for illegal copies. The
operation of the music industry reveals in other ways how the copyright system is
simply not working in Arab countries. Because the Arabic music market is
monopolised by a small number of producers, the majority of creative musicians and
composers produce their work at their own expense and on their own initiative. They
alone are the ones who bear any financial risks. Once the work is completed and
recorded, they then sign a contract with a distributor to sell their recordings. As a
result of this arrangement, the distributor gets all the benefits and has exclusive
control over the number of copies reproduced and sold. In fact, it would be
foolhardy for Arab composers and musicians to rely on the sales of their CDs as a
way to make a decent income. Instead, they can only count on the income which is
gained from public performances of their works.

The establishment of a branch of the Societe des Auteurs, Compositeurs et Editeurs
de Musique (SACEM) in Beirut, the heart of musical life for the Arab market, has not
improved the economic situation of musicians. Since it was impossible to collect
royalties every time music was played, SACEM decided that it made more sense to
charge television and radio stations and restaurants a fixed amount of money each
year for the right to broadcast and play recorded music. Yet, despite this system, only

63

two of the eight television stations and only a few radio stations actually pay
royalties due to SACEM; restaurants, which play music to attract Arab tourists, never
pay their royalties. Thus, after subtracting SACEM administrative expenses and
dividing the money between composers, authors and musicians, the artists get very
little of what they are supposed to get and certainly not even enough to cover the
expenses for registering a single new song.

Restricting artistic expression

Additionally, the copyright system restricts the communication of intellectual works
and artistic expressions within the Arab world. Examine what happens in the Arab
publishing market where translations are rare. A recent Human Development Report
published by the United Nations Development Programme states that only 330 titles
are translated per year for the entire Arab market. Arab publishers say that royalties
they are required to pay to Western publishers are far too high in comparison to the
price of an Arab book.

There are other problems and contradictions. In 2003, the famous Lebanese composer
Gabriel Yared was hired to create the musical score for the motion picture 'Troy'.
However after Warner Bros., the American movie studio, rejected his musical score,
the company refused to allow Mr. Yared to finish mixing and producing his score; as
a result, the score is not available for purchase by the general public.

Training and learning in other cultural fields are also hampered by copyright
restrictions, once again linked with financial constraints. Students in the Lebanese
audiovisual schools cannot afford to pay royalties for the use of audiovisual archives
needed for their graduating projects.

We can conclude then that existing intellectual property regimes, and copyright in
particular, reinforces the market power of cultural products owned and packaged by
large corporations and, in the process, seriously damages creativity and diversity in
production in the Arab world. The large Arab-owned corporations which dominate
the musical market here can afford to challenge piracy, to pay royalties to Western
entertainment conglomerates, and to hire performers at very high prices. The
Lebanese musical sector, by contrast, simply cannot compete and, as a result, three
large Arab corporations have a stranglehold over musical production. In fact, due to
the widespread pirating that is now occurring, producers often refuse to produce a
work unless they can be assured that 100,000 copies will be sold within weeks of it
first appearing on the market ( in other words, before the illegal copies invade the
market). This system kills all the artistic creation to the sole benefit of very popular
and mass music.

These corporations have monopolized all the stages of production, from creation, to
distribution and to broadcasting. They produce video-clips, own TV channels,
organise shows, finance stars, recruit programs, and create a vertically-integrated
chain that it is very difficult for 'outsiders' to break into. At the same time, these large
media corporations create and shape the tastes of the audience by imposing
American style and out-of- context products, leading artists to have unrealistic
dreams - unrealistic except for a very few - of individual success. They have power
to impose their terms and conditions on the artists and to eliminate whoever they do
not want. They also corrupt artists with extraordinary and disproportionate amounts

64

of money. There are no limits or controls on these enterprises and no requirement to
protect creative diversity. The market is flooded by uniform and generally bland
cultural products, usually at the expense of non-commercial artworks.

3.5 Traditional/indigenous knowledge and copyright: a complex
issue.

Introduction

There are significant problems facing groups who seek to protect traditional
knowledge in the contemporary information age. Thomas Greaves notes that "[t]he
very cultural heritage that gives Indigenous peoples their identity, now far more
than in the past, is under real or

potential assault from those who
would gather it up, strip away its
honoured meanings, convert it to a
product, and sell it. Each time that
happens the cultural heritage itself
dies a little, and with it its people." 141
While, as we will discuss later, it is
not always outsiders who are
attempting to commodify
knowledge, in many cases, the
appropriation of knowledge and
culture is perceived by those trying
to adhere to a traditional way of life
as a new form of cultural genocide.

The United Nations declared 1993

the International Year for the

World's Indigenous People, giving

indigenous peoples throughout the

world a forum in which to raise concerns. 142 Indigenous voices raise concerns

regarding the way culture is appropriated and the chasm between protecting culture

and the commodification brought on by intellectual property rights. As Greaves

points out,

Indigenous societies are seeking much more often to protect knowledge that
identifies sacred lands and cemeteries, that locates sources of ceremonial and
craft supplies, that draws on oral tradition and archaeological evidence to
build a case for land claims, that preserves spiritual wisdom and ceremonies,

The Lies and Thefts Just Never End

They came for our land, for what grew

or could be grown on it, for the resources in it,

and for our clean air and pure water.

They stole these things from us, and in the taking

they also stole our free ways

and the best of our leaders, killed

in battle or assassinated. And now, after all that,

they've come for the very last of our possessions;

now they want our pride, our history,

our spiritual traditions.

They want to rewrite and remake these things,

to claim them for themselves.

The lies and thefts just never end.

Margo Thunderbird, Native American writer (1988)

quoted in Ward Churchill, From a Native Son:

Selected Essays in Indigenism, 1985-1995 (Boston:

South End Press, 1996)

141 Thomas Greaves, Tribal Rights, in Stephen B. Brush and Doreen Stabinsky, (eds.) Valuing
Local Knowledge: Indigenous People and Intellectual Property Rights, (Washington D.C.:
Island Press, 1996), p. 25.

142 Michael Blakeney, 'Global Intellectual Property Rights: Boundaries of Access and
Enforcement: Panel II: The Law and Policy of Protecting Folklore, Traditional Knowledge,
and Genetic Resources,' Fordham Intellectual Property Media & Entertainment Law lournal,
12, Spring, 2002, pp. 762-763.

65

and that accords respect for physical things and insights that should not be
treated simply as grist for personal enrichment in the game of capitalism. 143

It is within this context that a discussion of intellectual property and indigenous
knowledge must take place. The issues at stake are important both culturally and
politically. While there is no single answer, it is the general opinion of the
Copy/ South group that copyright is not an appropriate form of protection for
traditional artistic and cultural production. However, as the following example
illustrates, some sort of protection is necessary.

Traditional music as the supposed 'Heritage of Mankind'

Back in 1996, a German rock group named Enigma had a hit near the top of the
international pop charts for more than six months. 'Return to Innocence' sold more
than five million copies world-wide, put the term 'world-beat' on the musical map,
and even was featured as background music for advertisements promoting the 1996
Olympic Games in Atlanta. 'Return to Innocence', however, was NOT Enigma's
original work and the background to this musical rip-off reveals a serious limitation
of copyright for countries of the South, especially for indigenous groups.

Briefly, here is what happened: 144

A group of more than 30 indigenous singers from Taiwan was invited by the French
Ministry of Culture to perform Taiwanese tribal songs at concerts across Europe. The
French Ministry recorded the concerts and issued a CD which the German music
magnate Michael Cretu (a.k.a. 'Enigma') heard and liked very much. He decided to
use significant sections on his own musical recordings: to accomplish this, Cretu
purchased the rights to this music from the French Ministry. When recorded by
Enigma, this music was called Enigma's 'Return to Innocence'. As for the Taiwanese
folk singers, they received neither recognition nor financial compensation; in fact,
they were not even told about any of these dealings.

Under current copyright doctrine, what the French Ministry and Enigma did was
perfectly legal, if morally abhorrent. Under 'classic' copyright theory (and the
practice of the Berne Convention and TRIPS), a work cannot be protected unless it is
original, fixated (i.e. written down) and created by individual (or perhaps by joint)
authors. In the case of this Taiwanese musical work, it was not 'original' (in the
Western copyright sense of the word), it was not written down as it arose from an
oral story-telling tradition, and it was the product of a communal indigenous culture,
and not as the 'romantic author' conception behind copyright theory suggests, the
creation of a individual starving composer (or author) living in a garret. As Angela

143 Greaves, op. cit, pp. 28-29. The effort to protect a broad range of rights over traditional
culture is evident. See: Laurie Anne Whitt, Mere Roberts, Waerete Norman, and Vicki
Grieves, 'Belonging to the Land: Indigenous Knowledge Systems and the Natural World',
Oklahoma City University Law Review, 26, Summer 2001, pp. 701-743; Russell L. Barsh,
'Grounded Visions: Native American Conceptions of Landscapes and Ceremony' , St.
Thomas Law Review, 13, 127-154 Fall 2000, p. 127.

144 p or f ur ther details, see Angela Riley, 'Recovering Collectivity: Groups Rights to Intellectual
Property in Indigenous Communities', 18 Cardozo Arts and Entertainment Law lournal 2000,
175.

66

Riley comments, "indigenous works fail to fulfil individualistic notions of property
rights that underlie the structure of Western law. . ." 145

While the Taiwanese singers were ultimately credited for their contributions to
'Return to Innocence/ for them nothing like innocence was gained. The intent of the
original tour of Taiwanese singers was to highlight a dying traditional culture and
the fact this music was appropriated and commodified by western singers highlights
the problems emerging around the issue of traditional knowledge.

Until recently, traditional knowledge was seen as a 'raw material' within the
intellectual property system - part of the 'common heritage of mankind.' Traditional
knowledge remained outside intellectual property laws because the commonly
accepted property rights of patent and/ or copyright did not seem to apply. Instead
of thinking about the possibility that Indigenous groups might have alternative
property models governing their knowledge, many simply assumed the knowledge
shared with them by Indigenous groups was free for the taking. While attitudes are
changing as a result of the growing resistance by Indigenous groups, there is still a
sentiment that unless it can be defined as intellectual property then it is open for
exploitation.

There are a series of important questions to consider. First what constitutes
traditional knowledge? Who should 'own' this knowledge? How should it be
protected if copyright and patent law is not utilized? We must also ask ourselves
whether we should use the language of property to respond to a problem caused by
extending property boundaries, or are there other ways? Furthermore, are we
making a mistake by using a romantic idea of the community? These questions and
others are important when framing the issue of traditional knowledge. 146

Avoiding essentialist approaches

As we discuss traditional knowledge, it is also important to avoid essentialist claims
regarding the relationship of traditional knowledge to the North. (That is, we must
not use an analysis that assumes all issues and all claims can be fitted into neat and
fixed boxes or categories.) Generally speaking, the issue of traditional knowledge is
framed as one where rich countries appropriate the knowledge of poor countries,
which certainly takes place as the 'Return to Innocence' example above illustrates.
However, focusing exclusively on 'biopiracy/ where rich countries appropriate the
wealth of the poor, allows us to disregard the fact that there is a larger debate over
the commodification of knowledge taking place within indigenous communities
themselves; they are not of a single mind about what should be done. Appropriation
of traditional knowledge also takes place among traditional communities as one
sector of the population chooses to commodify something that others seek to retain
as uncommodified.

Furthermore, we should avoid the essentialist view that there is no innovation going
on in the South. When one speaks of traditional knowledge in the global South, the

445 Riley, op cit. 177-178.

146 Michael Brown provides a thoughtful analysis of the dilemmas surrounding the issue of
intellectual property and traditional knowledge. See: Michael F. Brown, Who Owns Native
Culture? (Cambridge and London: Harvard University Press, 2003)

67

underlying assumption tends to be that innovation happened thousands of years ago
with cultures remaining in a sort of stasis since that time. Rosemary Coombe offers a
description of this common assumption:

According to Fitzpatrick, it is one of modernity's myths that others live in
worlds of static, uniform, and closed systems of meaning, whereas 'we' (a
European, literate, and propertied male 'we' in many cases) occupy a world of
progress, differentiation, and openness. This 'white mythology' assumes that
the West has law, order, rule, and reflective reason, whereas others have only
violence, chaos, arbitrary tradition (mindless habit), or coercive despotism to
govern social life. 147

However, innovation is on-going in the South, especially in areas covered by
copyright, the subject of this dossier. 148 Innovators in the global South may have a
different relationship with copyright and the underlying values associated with
intellectual property which obscures from view much of the innovation taking place
because it has not yet been appropriated into the commodity structure of intellectual
property. 149

One must also be aware that the politics of indigenous communities is complex and
it is not necessarily the case that governments within the global South speak for the
indigenous communities within their borders. Furthermore, indigenous cultures
exist throughout the developed world and are largely ignored in the debate over
copyright happening in these countries. The complexity of sovereignty questions
makes it difficult to know who speaks for traditional communities. Commodifying
traditional knowledge can, for example, be used as a vehicle for bringing revenue
into a country. 150 States in the global South may seek to appropriate traditional
knowledge to support their own economic goals and it must remain clear that states
do not always speak for the indigenous communities within their borders. For
example, organizations like African Renaissance tend to focus on how to best exploit
African traditional knowledge and avoid bio-piracy. 151

The lack of clarity at the state level may be one reason the World Intellectual
Property Organisation (WIPO) has become one focal point for discussion of
traditional knowledge issues. 152 WIPO has provided a forum for indigenous
communities to come together and speak to each other outside the 'official' positions
of their nation-states. While discussions in WIPO are still framed by property

147 Rosemary Coombe, 'Contingent Articulations: A Critical Cultural Studies of Law/ in
Austin Sarat and Thomas R. Kearns, (eds.), Law in the Domains of Culture (Ann Arbor.
Michigan, USA: University of Michigan Press, 1998), pp. 25-26.

148 while patent-related claims are also important, they are not the focus of this dossier.

149 Akalemwa Ngenda, 'The Nature of the International Intellectual Property System:
Universal Norms and Values or Western Chauvinism?' Information & Communications
Technology Law, Vol 14. 2005, p. 59-79.

150 Lakshmi Sarma, 'Biopiracy: Twentieth Century Imperialism in the Form of International
Agreements', Temple International & Comparative Law lournal, 13, Spring 1999, p. 109.

151 'The Simmering Debate on Intellectual Property in South Africa,' The African Times, Vol.
15. September 30, 2002, p. 19.

152 Rosemary J. Coombe, 'Sixth Annual Tribal Sovereignty Symposium: The Recognition of
Indigenous Peoples and Community Traditional Knowledge in International Law/ St.
Thomas Law Review, 14, Winter 2001, pp. 275-276

68

considerations, bypassing the nation-state and allowing for indigenous communities
to speak directly to each other has provided these groups with an opportunity to
articulate their concerns with the concept of intellectual property and seek measures
to protect what is called 'traditional knowledge' from appropriation as public
domain knowledge.

Four possible strategies being considered

A tension exists in the global South regarding the use of intellectual property to
protect goods. This tension suggests that there is no common answer as to how the
global South views traditional knowledge or how it should be used or protected. The
following are all strategies, or possible strategies, used by the global South to protect
what they see as their traditional knowledge.

First, indigenous communities may appropriate the language of intellectual property.
During the recent World Summit on the Information Society (WSIS), for example,
people from indigenous communities were asking for more protection because their
intellectual property was being appropriated. Thus, indigenous groups adopted the
language of their enemies in an effort to solidify their own forms of protection.
However, as one participant at the Copy/ South workshop in August 2005 noted,
many of these traditional representatives were paid by western governments to push
for a stronger intellectual property agenda.

However, in many cases it is too late to resist the commodification of knowledge
since many indigenous peoples have already seen their culture and science
appropriated. Thus, a second strategy could be developed to deal with these issues. In
this case, agreements must be reached regarding how knowledge is used and profits
will be shared. It is important to distinguish between outsiders appropriating
knowledge as part of what they perceive to be the 'public domain' and insiders using
knowledge to further innovation within the context of the culture. Intellectual
property laws can be helpful in creating a barrier to outside intervention while
attempting to protect a common good on the inside. It is possible to appropriate the
idea of copyright to create what David Bollier calls "property on the outside,
commons on the inside." 153 The idea behind Bollier's statement is that one can utilize
the language of property rights to protect a commons from the exploitation of
commercial forces. Otherwise, while those within a commons may feel free to share
their knowledge, they are easily exploitable by commercial interests who seek to
colonize aspects of the commons.

However, translating traditional knowledge into property rights even while trying to
critique a system of property rights has its own problems and, moreover, using the
language of intellectual property to critique a form of commercialising knowledge
will not lead to the best possible future. Whether the property right is individual or
collective, the nature of commodifying cultural content will lead to the same
problems of exploitation and the decline of what many cultures still hold to be
sacred.

153 David Bollier, Silent Theft: The Private Plunder of our Common Wealth, (New York:
Routledge, 2003), p. 179.

69

Indigenous people argue that it is their cultural heritage and therefore they have the
right to prevent monopolization by outside forces. Prohibiting access to knowledge
and the free exchange of culture by creating new types of monopolies is certainly one
strategy, but the larger problem is the ability to exclude others. Using the same tools
and language as the status quo to exclude others does not solve the problem of
barriers to knowledge.

On the other hand, 'the heritage of mankind' language is used to appropriate
traditional knowledge for commercial exploitation leaving many feeling exploited.
However, responding by monopolizing what was otherwise knowledge existing
outside of property rights simply reproduces the problem. Claims rejecting the idea
of intellectual property as yet another form of exploitation have been made by some
seeking to protect the importance of traditional knowledge. 154 Another solution is
necessary.

If we agree that the problem with intellectual property is that it excludes people, then
the goal is to avoid reproducing this type of exclusion. The solution we seek is
protection from being excluded. Extending the concept of property rights to group
rights does not make the underlying concepts of property any better. The value that
should be endorsed consistently across all forms of knowledge is that of non-
commodified sharing. It is pernicious to put exchange value over use value and the
copyright system puts exchange value over all other values.

We must avoid, therefore, what one Copy/ South contributor aptly pointed to as the
problem of 'King Midas'. For King Midas, everything he touched turned to gold and
this reflects the problem of commodification. When everything is privatised
(including money, life, and values), it turns otherwise non-quantifiable things into
commodities. This value system is being imposed on other societies. Unfortunately,
these other societies very often have their own value system that is more human and
ecologically compatible, but they loose this culture and way of thinking because they
adapt to the copyright system. Even discussing preserving traditional knowledge
through a system of 'group rights' or 'collective property' is problematic because it
introduces 'rights' and the commodification of culture into areas that may as of yet
remain uncommodified.

A third strategy that could be taken by those interested in protecting traditional
knowledge is to follow the observations offered here and avoid commodification
altogether. Protection of traditional knowledge has emerged as a problem because
copyright law is used to appropriate a previously uncommodified knowledge into
the commodity structure. Resisting commodification altogether is a legitimate
strategy; works of traditional knowledge, both scientific and cultural, should not be
treated as commodities and thus should remain outside the profit structure. This

154 Victoria Tauli-Corpuz, 'Biotechnology and Indigenous Peoples/ in Brian Tokar, (ed).,
Redesigning Life: The Worldwide Challenge to Genetic Engineering, (New York and London:
Zed Books, 2001), p. 253. Tauli-Corpuz who works in the Philippines with the Indigenous
Peoples' International Centre for Policy Research and Education argues that the views of
Indigenous peoples on the issue of intellectual property are substantively different from other
groups. Because Indigenous groups have long been marginalized by market-based economic
systems it is difficult for many to believe that a system like intellectual property rights will be
of use.

70

strategy fits with the way many indigenous peoples articulate their relationship to
traditional knowledge and culture: as sacred and not for sale.

Finally, a fourth important strategy is to recognize that the model of mutual aid often
associated with the culture and science of traditional knowledge should be the model
for the rest of the world. Instead of seeking to wrap traditional knowledge into the
package of western intellectual property laws, we should be actively trying to
deconstruct and break apart the western notion of authorship, ownership in a fixed
medium, or any medium at all. The model of traditional knowledge is that music,
medicine, art, religion and science can be locally protected (and traditional
knowledge is not without its property regimes, they are just very different ones); but
proprietary values associated with contemporary intellectual property laws should
be deconstructed. Instead of putting traditional knowledge into a western property
model, we should begin putting western property into the traditional knowledge
model, that is, a model which emphasises mutual aid and cultural sharing over
commodification.

3.6 The criminalisation of copying in the South and the 'piracy'
question

Introduction

The word 'piracy' is at the top of the agenda of many Western governments. In June
2005, for example, the European Communities circulated a 'Communication on the
Enforcement of Intellectual Property Rights' (IP/C/W/448) that emphasised "the
worrying evolution of counterfeiting and piracy worldwide." A March 2006 follow-
up document fretted that enforcement measures provided under the terms of the
TRIPS Agreement were not having the desired results and needed to be improved
through increased surveillance efforts by Interpol, customs authorities, and other
agencies. Curbing 'piracy' is rising up the agenda of some non-Western countries as
well; in the latter case, their concerns are focusing on the 'piracy 'of the work of
Western stars and sometimes the 'piracy' is of the work of popular local artists. What
are we to make of the so-called 'pirating' of copyrighted products?

Before we get into the question, however, one initial matter needs to be cleared up. Is
'piracy' the correct word to use to define this phenomenon? If not, why are the words
'piracy' and 'pirates' being used so widely by Western governments, large media
corporations, the media itself, and others? To answer the second question first, we
would do well to remember the words of noted African-American author Toni
Morrison: "....definitions belong... to the definers-not the defined." 155 Calling people
who use copyrighted works without the permission of their owners 'pirates' is a
crude, but often effective, rhetorical device to cast such people as simply the
contemporary version of the robbers and thieves who raided ships at sea in the days
of sail and made off with chests of gold and other booty. Indeed, today's digital
pirates are now often mentioned in the same breath as those other contemporary
'bad guys': terrorists. One media sociologist has shown how, in the pre- and post-
9/11 era, the activities of the terrorists, counterfeiters, and intellectual property

155 Toni Morrison, Beloved (London: Cahtto Windus, 1987), p. 190.

71

'pirates' were (and are) regularly linked together in police statements. Sociologist
Nitin Govil gives numerous examples of such unproven claims, including: a) New
York City's Joint Terrorism Taskforce claimed "that profits from counterfeit T-shirt
sales - sold in the very shadows of the twin towers - helped fund the 1993 bombing
of the World Trade Centre"; b) "British detectives claim that "Pakistani DVDs
account for 40% of anti-piracy confiscations in the UK and that profits from pirated
versions of Love, Actually, and Master and Commander funnel back to the coffers of
Pakistan-based Al Qaeda operatives. " 156 Using the very language of 'piracy' conjures
images of sea-faring, blood-thirsty brigands, who terrorise the innocent and are
devoid of moral scruples... and links them to their supposed cousins who shoot
down civilian airliners today. As for the answer to the first question, any serious
student of copyright law knows copyright 'piracy' does not involve theft or any type
of stealing; it is, at worst, unauthorised borrowing because the owner gets to keep the
original work. In other words, 'pirating' a CD has far different consequences than
stealing a car.

This article begins with a backgrounder on the criminalisation of copying, explains
how the stakes are often quite different in the South, and then looks at some wider
ramifications, including critical cultural implications, of copyright 'piracy.'

The criminalisation of copying

The criminalisation of copying and the war on 'piracy' will be familiar to many
people in Western countries. Breaches of copyright were once matters largely
handled by specialists and lawyers, and of little interest to us in the wider public.
However, in recent years we've seen a relentless shift in which copying has been
demonized, and become targeted with ever tougher criminal penalties. Well-known
instances include the pursuit of those who use peer-to-peer (P2P) online file sharing
networks such as Gnutella and Napster (when it was first established). We have been
treated to the sight of corporate legal machines and police raiding parties let loose
upon teenagers who choose to share their favourite music or video games with their
like-minded peers and friends. This criminalisation process has been helped along by
a slew of legislative measures against copyright 'violation' introduced by national
governments and through international treaties and agreements, such as the
Agreement on Trade-Related Intellectual Property (TRIPS) and the Council of
Europe Convention on Cybercrime.

This criminalisation process has also taken shape through the appearance of a
bewildering array of private bodies and interest groups, created by copyright-
holding corporations, who have taken it upon themselves to act as both self-
appointed police and 'moral educators'. They have unleashed a rhetorical onslaught
aimed at curtailing copying by instilling fear and guilt: parents are told that their
children need to be watched, in case they turn into hardened criminals in the privacy
of their bedrooms; copiers are dubbed 'thieves', and consumers of copied material
are accused of helping fund terrorism and organised crime.

Copyright holding corporations and their apologists will probably respond that the
kinds of criminalisation noted above are an unfortunate necessity, and will 'merely'

156 Nitin Govil, 'War in the Age of Pirate Reproduction', Sarai Reader 4, 2004, p. 380
http://www.sarai.net/journal/04_pdf/50nitin.pdf

72

restrict consumers' access to leisure and entertainment if they are unwilling and
unable to pay for it. From this viewpoint, limiting access to Grand Theft Auto video
games or the latest Coldplay album hardly impinges upon individuals' fundamental
rights or entitlements. The position around copying and criminalisation in the South,
however, is often very different.

Consider one area in which the criminalisation process has gathered pace over the
past few years, that of academic and educational publishing. Organisations such as
the American Association of Publishers (AAP), proudly advertise their successes in
staging armed raids against 'copy shops' in developing countries where textbooks
and other materials are reproduced. Such raids have occurred in countries such as
India, Malaysia, Pakistan, the Philippines, Taiwan and Brazil. For example, they
report with satisfaction that "the owner of Chamunda Photocopy Center was

arrested on the 5* of April, 2004 in Mumbai, and authorities seized 500 copies of

medical books from the establishment." The AAP also recently wrote en masse to the

Presidents of hundreds of South ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

Korean and Malaysian

universities, 'urging' them to

stop on-campus copying of

textbooks and other

educational materials, and

including in their missive the

reminder that 'commercial

copyright violations' can result

in prison sentences of up to five

years.

Such custodial sentences have

also become
commonplace
institutions in
countries are
massive political

increasingly

as legal

developing

exposed to

pressures and

"If it is a sin for the poor to steal from the rich, it must be a
much bigger sin for the rich to steal from the poor. Don't
rich countries pirate poor countries' best scientists,
engineers, doctors, nurses and programmers? When
global corporations come to operate in the Philippines,
don't they pirate the best people from local firms? if it is
bad for poor countries like ours to pirate the intellectual
property of rich countries, isn't it a lot worse for rich
countries like the US to pirate our intellectuals?

In fact, we are benign enough to take only a copy, leaving
the original behind; rich countries are so greedy that they
take away the originals, leaving nothing behind."

Roberto Verzola,' Pegging the World's Biggest', 12 Earth

Island Journal 41, 1997.

their governments are threatened with trade
sanctions and other penalties if they fail to uphold the copyrights of Western
businesses. (Things are obviously not moving fast or hard enough for the AAP, who
lament that "even in cases of conviction, the fines are too low and prison sentences
are almost nonexistent".) The onslaught of criminalisation is justified by claims that
copying is "irreparably damaging the development and preservation of our literary
talents and heritage." Setting aside the question of who, precisely, is meant by 'our',
we should note what is either repressed or denied by those who promote these 'anti-
piracy' measures. According to the AAP's figures, the 'top ten' countries for
monetary losses to book piracy include Pakistan, India, the Philippines, Mexico,
Indonesia and Thailand.

This should come as no surprise, since one important thing they share in common is,
quite simply, that all these countries are poor and struggling to attain economic and
social development. They do so under conditions of gross inequality in trade
relations with the advanced industrial world. The struggle for development and the
lifting of large populations out of poverty has to be driven by investment in
education and training. Lack of access to educational materials places a block on such

73

countries' ability to educate and train their populations, with the consequence of
blighting the life chances of millions. Without medical texts it is impossible to train
doctors and nurses who can provide health care in parts of the world where disease
and ill-health often reach epidemic proportions; without access to scientific journals
and books, they cannot train a generation of engineers who could design and build
networks of clean water, sanitation, safe housing, affordable and sustainable
transportation, and so on.

In short, what is lost to individuals and nations through the criminalisation of
copying is nothing less than access to the means for living a safe, healthy and
dignified life. It is worth remembering that the 'right to education' is upheld by
Article 26 of the U.N.'s Universal Declaration on Human Rights. To deny access to
the means of education through the criminalisation of copying is tantamount to
denying this right, and the rights and benefits that flow from it, to all peoples of the
South.

The wider ramifications of the 'piracy' issue in the South

Some of the many other issues related to copyright 'piracy' include:

1. One starting point when looking at the 'piracy' issue is to underscore the fact that
it is the very act of 'pirating' Western-produced cultural products which makes
these Western cultural products immensely more popular and available in many
poorer countries than they otherwise would be. There are people who claim that
such 'piracy' pushes aside, for instance, locally-made music from public attention
and makes such music seem less important in the eyes of several layers of the
population.

Is this an unexpected form of cultural imperialism? Perhaps this sounds
exaggerated, but let's see what actually happens. In China, for instance, huge
shipments of 'remaindered' CDs of the five big global record companies illegally
enter the market. This import, called in Chinese dakos, has two remarkable
characteristics. First, the market becomes rather quickly inundated with these
illegal imports. It is unlikely that record companies have immediately
'remaindered' best-selling stars who would otherwise be bringing in large
revenues for them. Second, at the edge of the CDs a notch has been cut. The idea
behind this notching is to make them unusable, but this is only the case for a little
bit of music on the CD. If there are merely remainders, would it not be more
effective to cut them in several pieces? One might start to think that cultural
industries have a vested interest in promoting their artists in parts of the world
where people do not have the money to purchase 'legitimate' versions at 'normal'
prices. Moreover, all that is 'forbidden' - in this case, buying 'pirated' CDs - is
considered by many as making them more desirable. Unproven allegations
suggest some that record companies may themselves distribute both legal CDs
and so called cheap 'pirated' copies of the work of their own artists. Of course,
not all 'piracy' originates from the big record companies. There are many
entrepreneurs, as well as politicians, who make big profits out of something that
is considered illegal by the law.

At the same time, we need to realise that there cannot be 'piracy' in societies
where the individual appropriation in the form of copyright does not exist. Why

74

not? Everybody in the community has the self-evident right to use and adapt all
works from the past and present creatively. If individual ownership has no
currency, then there cannot be theft either. Therefore, in most non-Western
cultures 'piracy' was an unknown phenomenon, at least until recently. Many
cultures have been characterised by their ongoing processes of creative
adaptation; otherwise those cultures would not exist.

2. The economics of copyright 'piracy', as well as who actually gets hurt and loses
out, are often portrayed in misleading ways. In the first place, while the ideology
of copyright suggests that it is a system designed to protect individual authors
(the so-called individual struggling 'romantic author') most copyrighted cultural
commodities are, in fact, owned under law by the employers of the people who
create these works. (Or, alternatively, the copyright is acquired by corporations
through contracts that are often one-sided as a result of unequal bargaining
power... as many musicians have learned to their sorrow.) As one recent article
concludes, "[I]t is abundantly clear that in the current era of industrial
production of cultural commodities, copyrighted works are more often than not
created by unromantic authors sitting in their cubicles creating for a large
corporation like Microsoft." 157 In other words, most financial losses due to piracy
do not result in losses by individual authors, but by corporations such as
Microsoft. This same article goes on to explain how decisions are made about
what books or CDs are 'pirated' and asks how sympathetic we should be towards
those who may suffer not losses, but less profits than they expect to receive.
"Clearly pirates respond only to a market demand, and not every book is pirated.
There is a particular popularity or price limit that has to be achieved before it
enters into the piracy circuit. Presumably, if a book has achieved a certain status
that leads to it being pirated, its author is no longer poor and struggling. Thus,
the sight of Madonna appearing in TV ads condemning piracy because it
deprives her of her livelihood is not terribly convincing as images of her many
villas and islands flash into one's mind." 158 As for Microsoft and its losses due to
unauthorised copying of computer software, Bill Gates is the richest person on
the globe.

3. We should also be suspicious of the accuracy of statistical claims as to the total
losses resulting from 'piracy.' To continue with the example of software,
powerful global organisations such as the Business Software Alliance, which
represents a number of large multinational software firms, claim they have
accurate and detailed profiles on country-by-country rates of software
piracy... and hence of the losses they have suffered. 159 But such calculations start
from the assumption that a consumer purchasing an illegal copy of software
would necessarily purchase a legal version of the same software if 'pirated'
software was not available as an alternative. Using the case of India, critics have
pointed out the fallacy of such an assumption. They ask: "while we know that
most computers in India have an illegal copy of Microsoft XP and Microsoft
Office, can we assume that every user would be willing to pay an additional

157 Lawrence Liang, Atrayee Mazmdar and Mayur Suresh, ' Copyright/ Copyleft: Myths
About Copyright', Infochangeindia.org, 1 February, 2005.
http://www.countercurrents.org/hr-suresh010205.htm

158 Ibid.

159 The website of the BSA is http://www.bsa.org/

75

Rs23,000 for these two programmes alone, especially in the light of a free

alternative in the form of Linux? Is it not

likely that most users would not go in for

the Microsoft software were it not for the

fact that pirated software is available for

free?" 160

'(o)ne might say that one nation's

'piracy' is another man's [sic]

'technology transfer'.'

Peter Jaszi, A Garland of
Reflections on Three International
Copyright Topics, 8 Cardozo Arts &
Entertainment Law Journal 47, 63

(1989).

4. Without glamorising 'piracy or arguing
that it represents a conscious resistance to
copyright laws and the values which they
represent, we do need to recognise that so-
called 'pirates', including commercial
pirates, play a positive role in many parts of the South. They enable the
distribution of low-cost technology, information and entertainment to millions of
people who could not otherwise access or afford it. Moreover, many of these so-
called 'pirates' participate in this informal information economy as a means of
earning a livelihood. And look at the context: when many counties of the South
have been subjected to centuries of economic exploitation by colonial masters,
when millions of slaves were transported in slave galleys from Africa to pick
sugar cane and tobacco (and with many dying en route), and with the rich
biological resources of the South subjected today to a growing plunder known as
'biopiracy', we could first start not by condemning copyright 'piracy', but by
asking why, in the so-called 'information age', Microsoft's Window's XP is being
offered for sale in Beijing's Hailong Market at a cost of US$ 245.00 (with logo and
shrink-wrap).... and its copy can be purchased in an unmarked CD in the same
market for a mere US$ 5.50? Could it be that the officially packaged version is
being sold at a price that bears no relationship whatsoever to the cost of
producing it? And if the answer is yes, might this be one reason why Bill Gates is
the richest person on the globe?

3.7 The privatisation of common culture proceeds in the South, at
a quickening pace.

It is happening more and more in recent years in non-Western societies that local
artists privately appropriate an artistic idea or a melody or a cultural development
originating from a collective tradition and then start to use it for their own individual
commercial interests. They pretend - to others and perhaps even to themselves- that
they are using 'my own idea' or 'my own song.' This pretence starts the process of
excluding others from the use of these cultural resources and, in this transformation,
the concept of copyright gets introduced rather quickly. Yet, the existence of this
phenomenon should not be a reason for amazement. The commonly-held
supposition that copyright can — and does - support artists to make a decent living
does not stop at the borders of the Western world. One may wonder what kind of
tensions this transformation causes in local communities. In any case, once the
private appropriation of cultural resources has started and is accompanied by the
introduction of the notion of copyright, societies and their cultural lives are never the
same as before.

160 Liang et al., ibid.

76

What has been described here in a nutshell covers the huge social transformations
that have been taking place all over the world for the past few decades but, in the last
years, have been going at a faster and faster pace. Although few seem to appreciate
the impact, radical changes of cultures are at stake. The processes may appear to be
automatic and self-evident happenings and hence not demand specific attention and
analysis. We do know that the owners of copyright and those merchandising these
cultural 'products' become the ultimate winners. It is not certain, however, that
everybody is content with those transformations. What tensions does this bring
about in different parts of the non- Western world? Are there counter movements that
argue that the public cultural domain should not be hollowed out and swallowed
up? What are their arguments? Where do they think a new balance should be found
between the commons in the cultural field and the right of artists to make a living
from their work? Hence, there is an almost wide-open research agenda.

Let's consider a typical situation. A local record company produces cassettes or CD's
of the work of local artists. (In a larger country, this record company may also be
active in the same region.) The distribution of this music and accompanying videos is
local (or regional) as well. Let's assume as well that the system of copyright does not
yet exist in this locale / region or it is very patchy. What are the kind of usual
agreements between artists and producers that can be found in different societies?
Are there any agreements at all? Does the production of a cassette deliver an income
to artists or does it mainly generate publicity that may lead to live performances?
What are the optimal conditions that make artists, as well as producers and
distributors, content? And what happens when an artist feels that he or she has been
treated improperly? Would a well regulated system of copyrights give him or her a
stronger position? When does the claim arise that another artist must refrain from
using, for instance, a certain melody? There are many questions then to answer.

Reasons for doubting copyright

From a Western perspective, one might be inclined to think that the introduction of
intellectual property rights - and copyright in particular - would be of real assistance
to artists. There are, however, several reasons for doubt. First, the state where the
artist resides must be strong enough to provide legitimacy to collecting societies and
to support their practical operations with an effective system of sanctions. This is not
the case everywhere and certainly not in Lebanon as was explained earlier in Section
Three. (Nor is it the case that the financial 'irregularities' and outright corruption
which permeate some of these collecting societies are being properly investigated by
governments in the South.) Second, there is an idea prevalent in the Western world
that who is the creator (or who is the performer) of a musical composition is
something that can be easily indicated and identified; such identification is a key
building block for the present copyright system. In most cultures in the South,
however, such a distinction does not exist at all. Third, most artists in the Western
world do not profit from the existence of a copyright system; only a tiny minority get
a substantial income from this rights system. (For example, a survey conducted in
2000 into the amount of income in royalties received by the 30,000 members of the
UK Performing Rights Society is revealing: 200 members received more than GB
£100,000, 700 members received more than GB£25,000, 1,500 received more than
GB£10,000, 2,300 received more than GB£5,000 and a total of 16,000 members

77

received under £100 161 ; for comparison purposes, the average annual income of all
British residents in 2000 was about GB£15,000.) Why would this be different in parts
of the world where this system was recently introduced? Fourth, the present practice
of copyrights aggressively privatises complete fields of creativity and knowledge
development. This is highly disadvantageous for artists' future processes of creating
and performing music.

Considering all of these facts, one may wonder whether artists would not be better
off if they negotiated directly with producers and distributors and, as well, joined
unions to make general agreements for the entire industry. Are there examples of
best practices that indicate how a satisfying balance can be reached between the
needs of artists and the public interest, while avoiding the introduction of the
copyright system that, apparently, has more disadvantages than advantages?

More and more artists from non-Western countries are getting contracts with one of
the big five globally-dominant record companies or with their sub-labels. If the work
they record is distributed only in their own local or regional market, more or less the
same questions will be on the table as those concerning the relation between local
artists and locally operating record companies.

By-passing the 'star' system

The contract that changes an artist from a non- Western country into a 'star' with a
global distribution system will not differ much from the contract his or her
counterpart in the Western world has signed; this system incorporates all of the
problems and objections that are inherent in the 'star' system. (It must be noted,
however, that the negotiating power of an artist from Africa, Asia, Latin America or
from one of the Arab countries is far weaker than it is for an artist from a Western
country.)What is similar, as well, is that the prospective 'star' must obey all the
procedures that govern anyone under contract with a multi-national record
company: the music will be polished endlessly; the only purpose of concerts and
tours is to promote a new CD; and all that is spontaneous should disappear behind
the horizon. However, this process may affect the artistic work of a non-Western
artist even more than it may affect a European or North American star. For these
latter stars, his or her rhythm and tonality will stay more or less the same as it was in
the local pub where they sang or played originally. It will be polished a little bit
more; one may like this, or one may not. But compare this with the sound of the
music produced by a non- Western musician. To sell and be popular, his or her music
must encapsulate the proper blend of the 'exotic' with a sound that can be tuned in
by the 'Western' ear - or what a producer thinks the 'Western' ear will like. So the
change in performance and presentation may indeed be quite fundamental and, in
the end, the musician may become quite cut-off and even alienated from his or her
own cultural roots.

Despite this transformation, very little research has been done as to what happens to
the music of non-Western artists once they come under the control of cultural
conglomerates and their producers. This is not a nostalgic question. If musicologists

161 M. Kretschmer , 'Artists' Earnings and Copyright: A review of British and German music
industry data in the context of digital technologies', First Monday, Vol. 10, No, 1, January
2005. www.firstmonday.org/issues/issuelO_l

78

can investigate what kinds of influences have penetrated the work of, for instance,
Bach, why are they absent when it concerns the major transformation processes that
are taking place at the moment in music from the Arab world, Africa, Latin America
or Asia as it is being adapted to - and transformed for - a global market? It should
not be difficult to investigate those kinds of interventions. For instance, there are
artists from the non-Western parts of the world that have two kinds of repertoire:
one which they perform at home, and one which they present as a star on the world
market. The comparison can be made quite easily. The research could be focused as
well on what is current in the country or region of the artist him or herself, and how
his or her work sounds and looks in the global context.

It is strange and regrettable that such forms of analysis are not what keep (ethno)-
musicologists busy today.

3.8 Western cultural conglomerates and the global marketing of
culture from the global South

In the ongoing process of globalisation, we see that Western cultural conglomerates
(or their sub-labels) have started to use artistic material from non-Western cultures
on a much greater scale than even a few years ago. One could suggest that this is a
creative adaptation that should be stimulated and encouraged. Everybody should
have the right to make even minor creative changes to a work as was tolerated and
promoted in all cultures everywhere in the world. Does this mean that those forms of
industrial creative adaptations do not have problematic aspects? The answer is no.

The main problem is that Western cultural conglomerates are exploiting cultural
productions being derived from non-Western cultures while, at the same time,
controlling cultural markets all over the world. They determine the character, the
sphere, and the ambiances in which the work will be presented. As a result, there is
seldom the normal kind of creative adaptation that takes place in an ongoing cycle of
additions, changes, and cultural dynamics within a community. Here is how the
current process can be characterised: after we, the giant cultural industries, get a firm
grip on the work by owning its copyright, no creative adaptation will take place any
longer, unless, we, cultural conglomerates, decide that it might or will happen, and
moreover only under our conditions. Actually, this means that the cultural
conglomerate alone decides what the work will be, now and in the future. This is
completely opposite to the practice in all cultures that creative adaptations were the
object of quarrels and enjoyment within a community and where nobody could say:
this work and all its possible adaptations belongs to me forever. Another problem is
that these cultural industries are not, by definition, respectful to the work they adapt.

By using the exclusionary powers granted by copyright, creative adaptation ends
with the cultural conglomerates which have appropriated artistic material from non-
Western countries. Copyright is the legal fence erected in the final phase of the
creative adaptation. Moreover, the price of the works cultural industries have
adapted and copyrighted is astronomical compared to what it costs them to take and
distribute non- Western local cultures. The discrepancy between what they pay non-
Western artists and what they receive in profits for their work is too great to be
justifiable.

79

3.9 The role of the World Intellectual Property Organisation in
spreading the copyright system and its narratives to countries of
the South

Backgrounder on WIPO 162

The World Intellectual Property Organisation (WIPO) is a United Nations
organisation based in Geneva. Established in 1970, it subsequently became the
lead/ specialised UN agency dealing with all intellectual property issues in 1974.
WIPO traces its organisational roots to the Bureaux Internationaux reunis pour la
protection de la propriete intellectuelle (BIRPI) which administered the two leading
international IP agreements, the Paris and Berne Conventions, as well as other
'special' IP agreements. Most countries join WIPO through their membership in the
Paris and Berne Unions. As of March 2006, WIPO had 183 members.

As for its finances, the proposed WIPO budget for 2006/07, as recommended for
approval at the WIPO General Assembly in September 2005, was 531 million Swiss
Francs (US$416.71 million). Significantly, one of the few areas of recent budget
increases has been the expansion of WIPO's programmes in countries of the South.
Unlike other UN organisations, which receive most of their funding from the
contribution of member countries, a very high percentage of WIPO's budget is
derived from the services it provides and, in particular, from the filing and ongoing
fees paid by patent holders who seek protection under the Patent Co-operation
Treaty. In fact, a total of 80 per cent of WIPO's total budget is derived from PCT fees.
As the total number of international applications for patents filed under the PCT has
increased from less than 10,000 in 1985 to more than 100,000 in 2001, WIPO's
revenues have also increased significantly in recent decades, especially since the
enactment of the TRIPS Agreement in 1994. WIPO is the wealthiest UN organisation
and appears likely to remain in that favoured position for the foreseeable future.

WIPO has two main objectives as set down in Article 3 of the WIPO Convention:

o to promote the protection of intellectual property throughout the world through
the cooperation among States, and, where appropriate, in collaboration with any
other international organisations; and

o to ensure administrative cooperation among the Unions.

162 p ar ts of this text draw on earlier published sources, including Sisule F. Musungu and
Graham Dutfield, ' Multi-lateral agreements and a TRIPS-plus world: The World Intellectual
Property Organisation (WIPO)' , Quaker United Nations Office, Geneva, 2003; this pamphlet
contains a detailed exposition on the functioning and role of WIPO and is available at:
http://www.iprsonline.org/ictsd/docs/WIPO_Musungu_Dutfield.pdf.; Peter Drahos with
lohn Braithwaite, Information Feudalism- Who Owns the Knowledge Economy? (London:
Earthscan, 2002.) (For a digital summary of this important book, see:

http://www.thecornerhouse.org.uk/item.shtml?x=85821#fn038ref.; Alan Story, 'Study on
Intellectual Property Rights, the Internet and Copyright', Study Paper 5, Commission on
Intellectual Property Rights, London, 2002, which is available at:
http://www.iprcommission.org/papers/pdfs/study_papers/sp5_story_study.pdf

80

Despite its seemingly pre-eminent role in international intellectual property affairs
and its stance as a strong proponent of what we might call 'intellectual property
fundamentalism', WIPO has, at least since the early 1980's, been forced into a
somewhat defensive stance, chiefly because it was considered as not fundamentalist
enough by US and European IP multinational rightsholders. For example, in 1982, just
as these corporations were launching their campaign for more expansive
international property protection and stronger protection mechanisms, the president
of the US drug giant Pfizer wrote an opinion piece in The New York Times entitled
'Stealing from the Mind'. In addition to charging that certain governments
(especially in the South) were stealing US knowledge and inventions, the Pfizer
article also criticised WIPO for "trying to grab high technology inventions for
underdeveloped countries" and contemplating treaty revisions that would "confer
international legitimacy on the abrogation of patents." 163 Why this initial broadside?
Throughout the 1980s, the most powerful developed countries and their
multinational corporations in the IP business had begun to view WIPO as a mere
'talking shop' and, in particular, as ineffective in the global enforcement of their IP
rights. But far stronger attacks, which ultimately undermined WIPO's central role,
were still to come.

Just as the US had sidelined UNESCO from any serious role in copyright policy in
the early 1980's - an impotence that remains today - what Peter Drahos calls 'the
Quad' (the US, the European Community and Japan, with a minor role played by
Canada) decided that the main forum for intellectual property policy issues should
become the General Agreement on Tariffs and Trade (GATT) rather than WIPO 164
Drahos calls this manoeuvre 'forum shifting'. By the late 1980's when negotiations
for a new intellectual property treaty linked to trade (later to become known at the
TRIPS Agreement) took shape behind closed doors, WIPO started to take an
increasingly diminished role in global IP policy. In fact, and over the objections of
countries such as Brazil and India, it was the GATT (later to become the World Trade
Organisation), that was the forum of choice for the drafting and passage of the TRIPS
Agreement.

WIPO's role in spreading the copyright message to countries in the
South

Since the mid-1990s, WIPO has re-grouped and works very actively in promoting the
spread and cementing of intellectual property values and laws in the South. Indeed,
the South has been a particular 'target area' in the ten years and this has been
especially true since the signing of the TRIPS Agreement in 1994. Here, for example,
is an excerpt from a proposal submitted in June 2005 by the Kingdom of Bahrain on
'The importance of intellectual property in social and economic development and
national development programs.' 165 In a section entitled 'The Role of WIPO in
Developing National Programs for Bahrain', the proposal states:

163 p e (;er Drahos with John Braithwaite,
http://www.thecornerhouse.org.uk/item.shtml?x=85821#fn038ref

164 gee Drahos and Braithwaite, Information Feudalism, Chapter 7 'Agendas and Agenda-
Setters: The Multilateral Game.'

165 -phe document, dated 14 June 2005, was prepared for the Inter-sessional Intergovernmental
meeting on a development agenda for WIPO, second session, Geneva, June 20 to 22, 2005.
Available at: http://www.wipo.int/edocs/mdocs/mdocs/en/iim_2/iim_2_2.doc

81

WIPO works with developing countries, including Bahrain, in setting up
national programs for social and economic development. Ongoing
cooperation and coordination with the Arab Bureau in WIPO has produced
tangible results, such as: modernizing national legislation on intellectual
property; facilitating accession to WIPO-administered treaties, including the
WIPO Copyright Treaty (WCT) and the WIPO Performances and
Phonograms Treaty (WPPT); supporting national awareness campaigns
through national and regional seminars and meetings, raising awareness of
the significance of intellectual property in an era of advanced technology and
accelerated production, and their impact on economic growth and
development; providing support for curricula development in national
educational institutes and universities; and participating in the preparation
of capacity-building programs for the judiciary and legislative authorities, to
keep abreast of worldwide developments in the intellectual property field.

Similar WIPO activities are carried out in many other countries across the South.

WIPO and its supporters use a range of themes in telling their story. The main
message in WIPO's evangelism is a fairly straightforward one: intellectual property
protection is a necessary tool for development. 166 More specifically, intellectual
property is viewed as the indispensable ingredient in the complex process of
knowledge and wealth creation which, it is suggested, earlier led to the prosperity of
developed countries. This is contrary to the evidence and to history. 167 The protect-in-
order-to-create cliche is fervently advocated as a universal and global imperative. For
example, WIPO insists that "[intellectual property] protection is an indispensable
incentive to creative and inventive work." 168 It denigrates as 'myth' any contrary
assertions that seek to draw upon the peculiarity of social and economic
circumstances of developing countries in the formulation of intellectual property
laws. 169

WIPO's approach strikes a cord with what is known in the United States as the
'bargain theory.' Under this rhetoric of reward as an incentive for creativity and
inventiveness (the roots of which can be traced to the patent and copyright clause in
Article 1 of the U.S. Federal Constitution), it is assumed that people can and will only
come up with new inventions if there is a sufficiently large financial reward acting as
an incentive for doing so. It is further argued that reducing incentives, such as
shortening of the duration of patents or copyright, will produce an unfavourable
atmosphere for invention and progress. WIPO advocacy is also highly commercial in
its orientation. Knowledge and culture are referred to as 'intellectual capital' to

166 g ee f or example, K. Idris, Intellectual Property: A Power Tool for Economic Growth
(Geneva: World Intellectual Property Organisation, 2003).

167 See for example, Ha-Ioon Chang, Kicking away the Ladder: Development Strategy in
Historical Perspective (London: Anthem Press, 2002); 'Intellectual Property Rights and
Economic Development - Historical Lessons and Emerging Issues', lournal of Human
Development, luly 2001.

168 g ee 'Striking a Balance: The Patent System and Access to Drugs and Health Care', WIPO
Publication No. 491(E), Geneva.

i® Ibid.

82

justify its treatment and conceptualisation of them as mere commodities in the global
marketplace. 170

"As an intergovernmental organization... WIPO embraced
a culture of creating and expanding monopoly privileges,
often without regard to consequences. The continuous
expansion of these privileges and their enforcement
mechanisms has led to grave social and economic costs,
and has hampered and threatened other important
systems of creativity and innovation."

Geneva Declaration on the Future of the World
Intellectual Property Organization, October 2004.
(http://www.cptech.org/ip/wipo/genevadeclaration.html)

There are various other

common WIPO themes. One is

the link between both the

transplanting and embracing of

intellectual property values and

nation-building (and

modernisation.) For example,

the document from Bahrain

cited above begins with the

statement: "The importance of

intellectual property is reflected

in everything around us and

challenges old established ideas and concepts." This modernisation theme continues:

"creativity breaks the shackles of classical science and shows that experience and

observation are the sound basis for modern scientific research" and the document

attempts to link the embrace of copyright and its accompanying values with the

global spread of cultures, such as that of the ancient Arab cultures. The enactment of

copyright laws, the Bahrain proposal states, is "allowing for traditional knowledge

and heritage to make significant contributions to the development of learning,

progress, employment and transmission of works through modern communication

and information technologies." The message is obvious: opposing the spread of

intellectual property values makes you a backward-looking element. And

conversely, to embrace such values is to be a moderniser and a nation-builder.

A linked theme, pushed incessantly by WIPO, is the role of intellectual property as a
way of encouraging inward investment to the South and of integrating the South into
the global economy. In fact, additional foreign direct investment and transfer of
technology are often suggested to be contingent upon adoption of intellectual
property rights. 171 New 'elites' and budding entrepreneurs in the South are a
particular target for these messages.

WIPO's 'technical assistance' programmes

As for the specific activities undertaken by WIPO, because of the prescriptive
'inevitability' motif by which the adoption of copyright is advocated, many of its
programmes are classed as so-called 'technical assistance' to countries of the South.
This is a euphemism for the organisation's pretension that what it is doing is simply
helping these countries to comply with their obligations under the TRIPS Agreement.
WIPO offers, for example, intellectual property training to professionals and officials
from Southern countries who are then expected, on return to their home countries, to
teach in law schools or to work in IP national administration offices respectively. In
the case of the former,' ever helpful' WIPO may even offer to help in drawing up

170 The concepts of 'commodification' and 'reward' were explained earlier in Section 3.

171 E. Wolfard, 'International Trade in Intellectual property: The Emerging GATT Regime/
(1990) 49 University of Toronto Faculty of Law Review, 106, 118 (stating that "technology
drives investment" and thus technology is "reluctant to flow where it is not protected.").
Journal of Transnational Law 243, p. 264.

83

course syllabi and provide WIPO-produced teaching materials. The supposedly
value-neutral 'technical assistance' extends even further. It is not uncommon for
WIPO to 'offer' countries 'assistance' by drawing up their own copyright legislation
to be adopted and incorporated into national law. This is one of the main ways by
which harmonisation is achieved; the legislation across certain regions, such as the
Southern Africa Development Community (SADC) and The Common Market for
Eastern and Southern Africa (COMESA) is conspicuously similar. In any event, this is
not difficult to do since WIPO deals with governments both at regional as well as
national level. In the same vein, 'sensitisation' /'familiarisation' workshops and
seminars, at which the virtues of copyright are preached, are a favourite past-time in
this lavishly funded propaganda process. WIPO's target groups have traditionally
included lawyers (paying audience), judges (paid and pampered audience), local
musicians ('victims' of piracy)
and government officials (who
are usually up for an all-
expenses paid trip to
Switzerland.) In more recent
times, traditional healers or
traditional medicine
practitioners have also been
scrumptiously courted since the
emergence of traditional
knowledge as a prominent
international topic in
intellectual property circles.

"In traditional African societies, information and life skills
have always been passed on from generation to
generation, through oral traditions and folklore for the good
of the whole society. With the new trade agreements being
negotiated and drawn up under the Trade-Related aspects
of Intellectual Property Rights (TRIPS), the World Trade
Organisation (WTO), and the World Intellectual Property
Rights Organisation (WIPO), African Societies are required
to adopt copyright regimes that are contrary to the African
understanding of information sharing."

Gertrude Kayaga Mulindwam, Chairperson - Organising

Committee, African Copyright Forum Conference, Uganda,

November 2005.
Here are some statistics on

WIPO's formal pro-IP educational activities. A WIPO announcement in February

2005 noted that "since the launch of its General Course on Intellectual Property (DL

101), in 1999, some 33,000 participants from 180 countries have registered for the

course. In 2003, an interactive learning management system was deployed by the

Academy which provided on-line learning resources for participants and a live

discussion forum. The Academy's tutorial faculty includes some 80 experienced IP

teachers and experts from across the globe who tutor in seven languages [...] The

course is available in 7 languages (Arabic, Chinese, English, French, Portuguese,

Spanish, and Russian) and is free-of-charge." 172

An additional aspect of WIPO's 'technical assistance' programmes is the
'modernisation' of existing copyright administrative systems and the building of new
ones in the South. WIPO also encourages the establishment of new national
reprographic rights organisations (RROs) within these countries; as outlined in a
previous section of this dossier, it has had some successes in this area. Another key
area of WIPO activity, especially in the South, is 'standard setting' and, in particular
the establishment of closed (as opposed to open) standards, meaning proprietary
standards. Finally, WIPO is involved in the proposing, drafting and creating of a
series of 'soft laws' involving copyright, that is, laws that are "technically non-
binding norms, but which states nonetheless follow in practice or to which at least
they subscribe" and "which overcome the drawbacks of [formal] treaty making." 173

172 http : / / www . wipo. int/ wilma/ pre ssinf o-en/ 200502/ msg00004 . html

173 Musungu and Dutfield, op cit.

84

All of these seemingly neutral law making activities are freighted with a clear
political and ideological message about the supposedly indisputable virtues of
copyright and its value system. .

'Why should developing countries provide a very real right to protection for foreign
works and inventions in their countries in return for the largely theoretical right of
receiving that treatment in developed countries?'

Simon Butt, Intellectual Property in Indonesia: A problematic legal
transplant, '2002 European Intellectual Property Review, 431.

One tactic
regularly
used by
WIPO in
the South is
to focus on
attempting

to win over one sector of the 'creative community'; musicians are a particularly
favoured target group. The aim is to show the purported benefits of the copyright
system for them and then to argue that this target group demonstrates how the
whole South and its various nations can benefit. This is very similar to the approach
used by the World Bank with its 'Nashville in Africa' sessions held in 2001 with
groups of African musicians. 174 On the economic level, such projects (and their
underlying message) are highly misleading. On the one hand, the actual number of
musicians from the South who could benefit from closer integration into the world
copyright system and its commodification/ royalties approach - and how much they
would benefit - is vastly inflated. (At the same time, the well-documented corruption
and nepotism that envelops music collecting societies in the South is not mentioned
or glossed over by WIPO). On the other hand, the question is never asked: even if a
small number of creators, such as musicians, could - or would - actually benefit
financially from a closer integration, how much would full compliance with the
global copyright system cost the overwhelming majority of the population (and
hence the nation) in higher consumer costs (e.g. for educational materials, software )
and in copyright royalty fees to be sent, usually in scarce foreign currency, to rich
industrialised countries and their media, music, publishing and other sectors of their
'copyright industries' ? In short, key financial calculations are ignored.

WIPO's veneer of liberalism

WIPO maintains a veneer of liberalism and pretended consultation, transparency,
and inclusiveness that hides its actual political and economic goals; indeed, this
attitude becomes a form of 'repressive tolerance.' Take, for example, this promotional
message announcing 'the Online Forum on Intellectual Property in the Information
Society', hosted by the World Intellectual Property Organization (WIPO) from June 1
to 15, 2005. 175 It states that:

The WIPO Online Forum is designed to enable and encourage an open debate
on issues related to intellectual property in the information society, and in
light of the goals of the World Summit on the Information Society (WSIS).
This presents a unique opportunity for all to engage in the emerging debate
on intellectual property in our day. ...The WIPO Online Forum is open to
participation by all interested persons - you are invited to join in online
discussions over a period of two weeks from June 1, 2005. It is hoped that the
Online Forum will further inform the discussions taking place during the

174 For a brief critique of the 'Nashville in Africa' project, see Story, CIPR Study, pp. 12-13.

175 http : / / www . wipo .int/ ipisf orum/ en/

85

second phase ofWSIS. The conclusions of the Online Forum will form part of
WIPO's contribution to the WSIS Tunis Summit.'

WIPO documents reflect this purported liberalism. For example, WIPO's
commentary for this online forum on the question "what is the impact of copyright
law, both at international and national level, on education and research?" argues that

copyright law gives authors the choice of how to structure their relationships
with consumers - whether to reserve their rights against all uses, charge for
some or all uses of content, or make their works available free of charge with
or without restrictions upon future use.' 176

But, in fact, copyright law is not a requirement for structuring such relationships.
And, moreover, most authors and creators do not have such a choice; due to unequal
bargaining power, for example between an individual musician and a multinational
recording company, the musician is required— more accurately, coerced— to assign
her/his copyright to the recording company.

We can conclude then that WIPO's 'liberalism' operates within a very controlled
agenda that again 'forgets' some critical economic and political realities.

The WIPO Development Agenda

In the past 18 months, a central issue before WIPO has been the WIPO 'Development
Agenda'; this agenda has obvious implications for copyright issues in the South.
Here is a brief backgrounder from the Electronic Frontier Foundation that describes
this moment and its current possibilities, albeit in rather inflated terms:

In October 2004, the World Intellectual Property Organization (WIPO) took
the historic step of agreeing to consider the impact of its decisions on
developing nations, including assessing the impact of intellectual property
law and policy on technological innovation, access to knowledge, and even
human health. What's at stake is much more significant than the harmony or
disharmony of IP regulations. WIPO decisions affect everything from the
availability and price of AIDS drugs, to the patterns of international
development, to the communications architecture of the Internet.

WIPO held a meeting in April to discuss Brazil and Argentina's Proposal to
Establish a Development Agenda [PDF], which had been endorsed by
hundreds of individuals and public-interest non-governmental organizations
(NGOs), including EFF and the Consumer Project on Technology (CP Tech),
through the Geneva Declaration on the Future of WIPO, and the subsequent
thoughtful Elaboration on Issues Raised in the Development Agenda proposal
from the 14 countries in the Group of Friends of Development. This is an
extraordinary breakthrough. The Development Agenda gives WIPO the
opportunity to move beyond the narrow view that any and all IP protection is
beneficial, and choose instead to act strategically to spur economic growth,
foster innovation, and help humanity. 177

176 Online Forum on Intellectual Property in the Information Society, Theme Four

http : / / www . wipo . int/ roller/ comments/ ipisf orum/ Weblog/ theme_four_w ha t_is_the

177 http://www.eff.org/IP/WIPO/dev_agenda/

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Acting on the purported liberalism of WIPO and the claim from some working in the
'access to knowledge' treaty group that WIPO can be 'taken over' by NGOs and
allies, 178 a number of NGOs attended and spoke briefly at the WIPO Intersessional
Intergovernmental Meetings held in Geneva in late June 2005. A sample of their
submissions is one that was presented by the advocacy group, IP Justice. 179 But very
little was accomplished. One report, dated 27 June 2005, concluded: "The second
meeting on the WIPO Development Agenda is now finished, and the opponents of
reform have made their strategy clear: tie-up the meeting in procedural posturing to
forestall substantive debate on the real issues. Even as the Friends of Development
tried to discuss unassailable reforms like an ethics code for WIPO, the proceedings
kept getting sidetracked by countries that wanted to cut off debate."

As more and more activists are beginning to realise, the focus needs to become not
on how to take over WIPO - an unlikely scenario indeed - or how to reform it, but
rather on it how to abolish it and start building a new organisation from the ground
up.

178 This tactic/ possibility was suggested by a representative of the CP Tech group at an
'access to knowledge' conference in London in May 2005. For more on this group, see Section
5.7.

179 IP Justice Policy Paper for the WIPO Development Agenda, 20-22 June 2005, Geneva
Switzerland, available at:
http://www.ipjustice.org/WIPO/WIPO_DA_IPJustice_Policy_Paper.shtml

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SECTION 4 - SERIOUS AND DAMAGING BARRIERS
TO THE USE OF COPYRIGHTED MATERIALS IN
COUNTRIES OF THE SOUTH

4.1 Introduction

Section Four, the longest section of the dossier, examines how copyright laws, their
presumptions, and the fine print of domestic copyright statutes and international
conventions block access to and use of all types of copyrighted works by those who
live in the South.

The issue has been framed essentially under three themes:

o the barriers that have been and are being created to access in the South to
educational materials, technical information and 'knowledge' created in the
North;

o the barriers that are created within the South (though often not by the South but
due instead to the provisions of international copyright conventions) to access to
'knowledge' and technical information created in the South;

o the cultural, social, and political consequences of the essentially one-way flow of
copyrighted works such as books and movies from the North to users in the
South.

Greater access to 'knowledge' and technical information created in the
North

This was a key focus for the demands of newly-independent countries in the South
during the 1950's and 1960's in the period labelled 'the international crisis of
copyright', an era discussed in Section Five of the dossier. Fifty years later and given
the continuing uneven global development and the fact that an overwhelming
percentage of copyright works of all types are still produced in the North, this
particular 'flow' - or, more accurately, lack of flow - remains an ongoing point of
conflict and hardship. In this section, we look at how copyright acts as an access
barrier in a variety of locations and programmes and for tens of millions of people
across the South: in libraries, on distance learning courses, on the Internet and in the
use of computers themselves, in the translation of copyrighted texts into other
languages, for students, teachers and university researchers, for the visually
impaired, and for the public generally. We commence this section with an article on
the duration of copyright.

Access barriers to 'knowledge' and technical information in the South

With the recent expansion of copyright systems in the South and with the increased
production of works in some - though not all - such countries, this aspect of the
access question is primarily an internal or domestic (or, in some cases, regional)
matter for the countries of the South. This section of the dossier only addresses this

89

aspect of the access issue in a few isolated spots; it is one issue that deserves much
fuller discussion and documentation with practical domestic examples from the
South. The wider embrace of the ideology of copyright across the South, a goal that
the World Intellectual Property Organisation is working hard to achieve (as we
explained in Section 3.9), will also lead to the barricading of more works behind
locked and privatised copyright doors.

The cultural, social and political consequences of the one-way flow of
copyrighted works from the North to the South 180

Up to this point in the introduction, we have put quotation marks around the word
'knowledge'. We have done so for good reason as we think it is fallacious to assume
that, on the one hand, the rich countries of the North are the source of all the
important knowledge in the world and that, on the other hand, the countries of the
South are interested only in being passive receptacles of this knowledge. Western
chauvinism and a sense of superiority on this issue of knowledge and its use are
strongly entrenched. Yet, this is a complex issue that is addressed only briefly at the
end of Section 4 of the dossier; it also requires further discussion, debate, and
documentation (which we have only begun in Copy/South). One question that needs
to be examined is this: Should the South endorse the notion of an unrestricted 'free
flow' within the global marketplace of copyrighted works and cease to worry about
the wider social and political consequences of what is sometimes called 'cultural
imperialism'? This, we suggest, is a dangerous course of action to take, especially
after reading excerpts (found in Section 4.13) from the writings and speeches of those
in the United States who encourage this particular form of knowledge transfer.

The role of copyright

Obviously copyright laws and the global copyright system are not the only barrier -
or even, in some cases, the most important barrier - to access. In fact, in some poorer
parts of the South, copyright is almost a non-existent issue as traditional hard copy texts,
such as books, are not available and computer use and Internet access is non-existent
... or available only to a tiny elite. So income levels are one determining factor for
access. The level of state financial support for schools and libraries is another, though
copyright laws certainly add to the costs of providing instructional materials and the
purchasing of books for libraries. Other access barriers are primarily economic and
technical, whether the shortage of photocopiers or the shortage of computers and
telephones and other telecommunications linkages that are taken for granted in
many parts of the North. In such circumstances, copyright restrictions add an
additional obstruction, an obstruction, we should add, that is seldom discussed in
policy studies about the South and its way forward. This section of the dossier is one
attempt to try to overcome this important omission.

180 p or a discussion of this topic from the viewpoint of moral philosophy, see Johannes J. Britz
and Peter J. Lor, 'A moral reflection on the information flow from North to South: an African
perspective' Libri vol.53 (2003): 160-173.

90

4.2 Extending copyright terms extends privatisation

Copyright law can create some very puzzling scenarios, indeed some downright
absurd ones for accessing protected works. Consider the following hypothetical
situation related to the extension of the term of copyright:

A Spanish literature teacher in Chile, let's call him Juan, needs to provide
each of his 15 students with a copy of a short book (40 pages) of poems for use
on his course. The book was written by a poet, let's call her Maria, and
published in Spain in 1935. Maria's book is out of print and so it cannot be
purchased anywhere, including in Chile or Spain. Juan does, however, have a
copy in his personal library and wants to use his own edition to make the
photocopies. Maria died 56 years ago in 1950 and before she died, she
transferred her ownership of copyright in the poems (known as assigning
copyright) to a Spanish publishing company because, at the time, she needed
money to pay off some bills. (There are very few rich poets.)

You might think that there would not be a problem in 2006 for Juan to photocopy an
out-of-print, 1935 book and pass it out to his students for their reading and studying
purposes. In fact, there is. If he goes ahead and photocopies this book of poems and
passes it on to his students, Juan is liable to face a civil action (a private legal action
initiated by the Spanish company) for copyright infringement; in some countries, he
might also face a criminal prosecution. Why? For infringement purposes, it does not
matter that the book is out of print. Nor that Juan owns a copy in his personal library.
Nor does it matter that Maria is dead and, in any event, that she had assigned the
copyright to a company before she died (....or that Juan did not know about the
copyright assignment and that he could not track down this Spanish company to ask
permission to copy the book even if he had known about the assignment.) And
finally, nor does it matter that the reason Juan was doing the copying was for a non-
profit educational purpose; there are no such blanket exemptions available in
copyright law.

What does matter is that Chile has recently extended the term of copyright from a term
or period of the life of author (that is, from the date the author dies), plus 50 years to
a term of life of the author, plus 70 years. Because Spain, where the book was
published, and Chile, where it is to be used, are both members of the 1886 Berne
Convention for the Protection of Literary and Artistic Works, 181 copyright in this 1935
book of poems will not expire in Chile and in Spain until 70 years after the year
Maria died (1950), which is 2020. And while Juan and the university in Chile that
employs him is not likely to actually face a civil action (the courts would grind to a
halt if every infringement was prosecuted and many of us unintentionally infringe
copyright regularly or must do so because there are no other alternative and sensible
way to access and distribute materials), the fact remains that copyright term
extension is creating an increasingly precarious situation for those who wish to use
works legally protected by copyright. Numbers of countries in the South have, in the
past five years, made the situation even worse, often as a result of growing pressures

181 See Section Six, Glossary.

91

from the United States and, to a lesser extent, from the European Union. As a South
African educational copyright expert has stated, "copyright term extension threatens
to make criminals out of hundreds of teachers and librarians who simply want to
provide materials for their students."

The legal basics of the copyright term issue

Here are the legal basics of the copyright term question:

Under the provisions of Article 7(1) of the Berne Convention, the term of copyright
protection "shall be the life of the author and fifty years after his [or her] death." This
means that every country which is a member of the Berne Union must provide
copyright protection for the works ( e.g. poems, novels, music, photographs)
produced not only within its own country, but also in all other members of the Berne
Union for this same period; there are 160 members of the Berne Union (as of
November 2005). However, further along in Article 7, it states that member countries
"may grant a term of protection in excess of those provided by the preceding
paragraphs." There is no wording in Berne that establishes what the maximum
allowable term is and so, for example, any country could legally establish a term of
life of the author, plus 500 years, or longer.

Especially in recent years, copyright owners (who, in most cases, are not the actual
creators of the works in question) have been pushing for longer and longer copyright
terms. Any actual creators/ authors directly affected would have died decades ago.
Jack Valenti of the US, president of the Motion Picture Association of America from
1966 to 2004, once suggested infamously that the term should be "forever less one
day." These 'copyright industries', as they call themselves, want to delay for as long
as possible the date by which materials must go into the public domain and hence
when they can be freely available for all to use without restrictions.

Many criticisms have been made about the 1998 extension of copyright in the United
States under the provisions of the Sonny Bono Copyright Term Extension Act 182 . This
section of the dossier examines the extension of copyright term across the global
South and its effects across three-quarters of the globe.

As stated above, numbers of countries in the South have jumped aboard the 'extend
copyright term' train. Although the situation is changing on almost a monthly basis
and is somewhat complicated 183 , it has been reported that in Morocco, Madagascar,
Ghana, Mozambique, Nigeria, Chile, Costa Rica, Ecuador, Paraguay, Nicaragua, Peru
and Singapore, the term has been increased to life of the author, plus 70 years. In July
2003, Mexico increased its term to life, plus 100 years, which appears to give this
country the longest term of any country on the globe. (Cote d'lvoire is second, at
lifetime of the author, plus 99 years.) Other countries, such as the Dominican
Republic and El Salvador appear poised to also change to lifetime, plus 70 years.
(Usually all such extensions apply to both existing, created under previous
legislation, and new works to be created in the future.) Relentless pressure is being
exerted on other countries, such as South Africa, to also increase its term to life, plus

182 p or one example, see the excellent website 'Opposing Copyright Extension' at:
http://homepages.law.asu.edu/%7Edkarjala/OpposingCopyrightExtension/

183 p or f ur ther details, see http://onlinebooks.library.upenn.edu/okbooks.html

92

70 years. There, as elsewhere, the pressure is usually coming as a key clause in new
and proposed free trade agreements between various countries and the United
States. 184

Yet, there has also been resistance and opposition to such US pressures to extend the
term of copyright. In October 2002, the government of Taiwan, for example, rebuffed
US pressures to extend its term to life, plus 70 years, during Taiwan-US intellectual
property negotiations. Outside the offices of the Board of Foreign Trade in Taipei, a
large group of university students protested against the US pressure, shouting
"knowledge cannot be monopolised."

Multi-nationals are the main beneficiaries of term extension

Who benefits from such increased monopolisation and privatisation of knowledge
when countries in the South cave in to US pressures? The main beneficiaries now - as
they will be also in coming years - are large multi-national corporations located in
the United States and Europe; they are, by a wide margin, the richest rightsholders in
copyrighted works and have the deepest (and widest) 'warehouses' of already
copyrighted works. Only the most naive person would believe, for example, that the
US put pressure on Mexico to increase its copyright term to the lifetime of the author,
plus 100 years, because the US government wanted the songs and stories and
artwork of Mexican composers or novelists or artists to gain extra years of copyright
protection within Mexico. Instead, the aim was to gain an additional 20 or 40 or more
years of revenue for US-owned works used in Mexico by Mexicans.

The main consequence of extending the term of copyright - in both the South and the
North - is that fewer and fewer works will enter the public domain and will do so at
later and later dates; until such works enter the public domain, they will have the
potential to earn more money for their owners, who again, are seldom the original
creators. And in exchange for what supposed benefits? First decisively exposed as a
self-serving fiction more than 160 years ago 185 , the main rationale for term extension
is the assumption that authors and composers and artists will write more and better
works and spend longer at their desks today in 2006 because they want to provide
greater financial rewards not only for their children and their grandchildren (both of
whom may be unborn and hence may only be possible benefactors in the future if and
only if the original author retains copyright) but also for their great grandchildren and
great-great grandchildren who may be alive in the year 2131 . (The example assumes
that the author is now aged 25 and dies when he or she is 80 and that the work is still
a saleable commodity in 2131.) Little wonder then that Macaulay, who exposed this
fiction so many years ago, labelled copyright "a tax on readers. . .." 186

Two further economic realities are often forgotten as well. First, the economics of
copyright means that, while the first copy of a CD or software may require a
significant initial investment by the producer (but often also by the actual creator),
the cost of all additional copies produced, such as those available and sold during the
period of additional copyright term, are very cheap. They can be stamped out on

184 p or background on current Free Trade Agreements, see Section 2.4 of the dossier.

185 T. B. Macaulay, Speech to the British House of Commons, 5 February 1841. Available at:
http://www.kuro5hin.org/?op=displaystory;sid=2002/4/25/1345/03329

186 Ibid.

93

presses for mere pennies per copy. In other words, copyright term extension creates
what can only be called 'pure windfall profits' for copyright owners of existing
copyright works. Second, adding an additional 20 or 50 or more years of copyright
term adds - indeed ensures if the product remains marketable - additional
generations of revenue streams for such corporations. For users and consumers in the
South, these additional streams add additional generations of costs and, ultimately,
debts. At a time when many countries in the South are trying to reduce their debt
burdens, increasing the term of copyright means that they are literally mortgaging
their financial futures; instead, they should be considering how they can provide
more and better materials to their citizens at cheaper prices today and in coming
years.

Estimating the costs of term extension

Few reliable economic studies have yet been able to estimate how much copyright
term extension will cost individual countries in the South; admittedly it is a difficult
calculation to make. One study from Australia, which has also recently increased its
term from life, plus 50 years, to life plus 70 years, is instructive for far less developed
countries. According to Australian National University economics professor Philippa
Dee, Australia's extension of copyright, which was part of its free trade agreement
with the US, will cost Australia up to AU$88 million a year and AU$700 million in
the future. 187 And is there really an incentive for authors and composers? A total of
17 leading US economists, including five Nobel Prize winners, told the US Congress
in 2002 that adding 20 more years of copyright term in the United States would
create no significant incentive for the creation of new works in that country. How
would an additional 20 years create an incentive for authors in Peru or Singapore?
And how can there be an incentive created by the retrospective extension of the
copyright term, that is, adding an additional 20 or more years to works written or
composed by persons who have long since died? "Dead men do not write poetry," as
one commentator put it. Nor does our dead Maria.

And who loses is becoming clearer every day. Let us assume poet Maria also wrote a
best-selling book of poems used as a school text in Chile and with average annual
sales in that country of 2,000 copies. And let us assume that the wholesale cost of that
book is US$10.00 = Chilean Pesos 5,160.00. Chile's decision to increase the copyright
term by 20 years means, in the case of Maria's book, that from 2000 to 2020, the
additional cost to Chileans or Chilean educational authorities will be 2,000 copies X
$US10.00 X 20 years = $US400, 000.00 (or Chilean Pesos 206,481.00). Not surprisingly,
such books can seldom be afforded.

We can fairly conclude that copyright term extension is another barrier to access.
Why the year that an author died, in this case 1950, should determine the term of
copyright is a question which is seldom considered; such a determining factor makes
even less sense when the author does not even own copyright in the work. And fifty
years of copyright protection after an author dies is already a very long period of
time. Let's not forget that the first copyright law, Britain's Statute of Anne of 1709,
was drafted at a time when books and papers circulated at a far slower pace than

187 'Big FTA stough brewing on copyright', 30 June 2004, Bilaterals.org., at
http://www.bilaterals.org/article.php3?id_article=737

94

today. This statute awarded a term of 14 years after publication in most cases. In 2006,
how can a 70 year term - or longer as in Mexico - after an author dies be justified?

4.3 Distance learners kept from study materials: experiences from
Kenya

"Someni vijana, muongeze pia bidii, mwisho wa kusoma mtapata kazi nzuri
sana"

The chorus of this song, broadcast on a back-to-school radio show, resonates in every
Kenyan child's ears during every school term. Translated, the chorus urges all of
Kenya's young people to read so that, at the end of the day, they will be able to get a
good job. And the benefits of having a good education outlined in that simple song
are reflected in the economic disparity between those who are educated and those
who are not. As a recent World Bank-funded study done in Kenya concluded, those
households with parents who were educated are less likely to suffer poverty than
those with no education at all. 188

Unfortunately in Kenya and in many other African countries south of the Sahara, this
gap continues to grow as few are able to afford the high costs of education and
donor-dependant government budgets are no longer able to fund primary, let alone
secondary and tertiary, education. Hence it is not an exaggeration to say that there is
a crisis in higher education in Sub Saharan Africa. This diverse region suffers from a
myriad of educational problems including the inability to accommodate the volume
and variety of student demand, inflexible teaching methods that cannot
accommodate a diverse student body, a lack of educational quality and, more
devastatingly for both students and the government, the rising cost of education that
is not sufficiently relevant to the labour market. This has resulted in a massive brain
drain from the continent, but the option to travel abroad and study is a preserve of
the rich.

A number of African countries including Kenya have responded to this crisis by
"liberalising", that is, commercialising, their education sector and permitting private
institutions to set up tertiary institutions in their countries. While these have
attempted to fill a gap, many see them as taking advantage of a desperate situation:
the quality of education offered is questionable in some instances. Nevertheless,
these institutions have been unable to plug the hole, especially as the majority of
these privately operated institutions tend to offer humanities-based courses rather
than technically-based programmes. The former are administratively cheaper to offer
in comparison to the cost of putting up a medical school with necessary equipment
or an engineering department that would be expensive to establish and maintain
without any government financial support.

On paper, distance education presents itself as a feasible alternative for Sub Saharan
Africa. It promises to solve many of the problems faced by government, such as the

188 Muriithi Muriuki 'The Great Divide: Kenya's Richest And Poorest Areas' at

http://www.nationmedia.com/dailynation/nmgcontententry.asp?category_id=l&newsid=6

0611

95

inability to construct teaching facilities and accommodation for an ever-increasing
student body or to pay for a larger number of teachers and lecturers. Distance
learning would seem to allow for the provision of more affordable education to
larger numbers of students and to reach those far from city hubs. In reality, however,
many countries in this region have assigned distance education a low priority as
evidenced, for example, by the lack of a national policy on distance learning in
Kenya.

Delivering distance learning in Africa

Private enterprises have, instead, taken the lead in the provision of distance learning
in this region; they use the following delivery models:

o Distance learning via electronic means, as is done via African Virtual University
(AVU), which is a World Bank initiative running in Kenya, Zimbabwe, Uganda,
Ghana, Ethiopia and Tanzania. It is aimed at filling in the gaps caused by the
inadequate provision of technology-based courses.

o Distance learning through 'affiliate' colleges. Over the past ten years or so, there
has been a significant upsurge in the number of colleges offering degrees and
diplomas from national and foreign institutions in the developing world. This is
often preferred as it is cheaper than studying abroad.

o Distance learning through correspondence. This remains the oldest and, for
institutions, the cheapest form of distance learning. It involves the least amount
of physical resources and has successfully been used by the University of South
Africa (UNISA) and Strathmore University in Kenya.

Yet, according to a study done by the Association for the Development of Education
in Africa 189 , there are fewer than 150 distance education providers operating across
Sub Saharan Africa today and governments have not warmed up to the concept as
expected. So why has this concept borne so little fruit in Sub Saharan Africa? The
most common reason given is that the cost of distance education is more expensive
than conventional education and thus its survival rate is diminished. One example is
the Radio Language Arts Programme in Kenya which closed when US Agency for
International Development (USAID) funds were no longer available. More recently,
students in one program at the Africa Virtual University-Kenyatta University have
been required to purchase textbooks worth USD 800, and even when substitutes
were compiled at USD 100 190 , this cost still remained too dear for the majority in Sub
Saharan Africa who live below the poverty line.

At the same time, a seldom mentioned reason for the high contributory costs of
distance education is the high costs associated with the operation of copyright laws;
they create a thicket of access problems. Distance education requires that teaching
materials are often copied and distributed to students. Instructors and course
designers often use copyrighted materials to design courses and teach and learners
often must consult copyright materials for their learning requirements. For delivery

189 ADEA Working Group on Distance Learning and Open Learning 'Distance Education And
Open Learning In Sub-Saharan Africa' at http://www.adeanet.org/publications/docs/open
learning l.pdf

190 Pauline Ngimwa's e-mail response of 8 December 2005 to question on the effect of
copyright laws on Distance Learning.

96

purposes, most of these teaching materials are copied and distributed to students
who are usually remotely located. In Kenya and elsewhere, copyright laws give
rights owners the exclusive or sole right to copy and distribute their works. Because
of this, copyright owners, who are usually publishers, are able to charge arbitrary
prices for access, backed up by the added threat that any unauthorised use of their
works will be illegal in most national jurisdictions worldwide and that breaches can
be prosecuted. As digitisation catches up with education, more and more materials
are now being locked away behind subscription based databases which, when
coupled with digital rights management systems 191 , make them all the more difficult
to access.

Existing laws do not facilitate distance learning

This expensive and restrictive system does not augur

well for developing countries that are largely

importers of copyrighted material. Philip G. Altbach

contends that the specific needs of these countries

will vary. In some cases, access to scientific journals

and books at subsidized prices for a limited period

would help greatly. 192 In other cases, local publishers

with limited markets need easy and inexpensive

access to foreign books in order to translate them into

a local language. What is certain is that copyright has

served as a barrier to the development of distance

learning in the countries of the South. Whereas

distance learning students expect to receive the same

access to materials as their counterparts in the

'normal' stream of learning, the copyright holder

expects to make profits from the sale of his work or from licences and royalties.

Unfortunately because "copyright laws were not structured to facilitate distance

learning", 193 this conflict of interest between the expectations of the key players in the

distance learning equation has persisted and the interests of the developing countries

with weaker bargaining powers continue to be ignored.

Tyrants and autocrats have
always understood that
literacy, learning, books and
newspapers are potentially
dangerous. They can put
independent and even
rebellious ideas into the heads
of their subjects.

Carl Sagan, The Demon-
Haunted Worid: Science as a
Candle in the Dark. 1997 p.
362

One particular problem facing distance learning students is their inability to actually
access many required books, journals, and other like materials. The cost of textbooks
and other material has become so high in Kenya and elsewhere in the region that the
sparse numbers of public libraries with meagre state funding are not able to properly
provide access to books and materials. For any distance-learning programme, this
absence spells disaster: the usual expectation is that correspondence students should
be able to at least access books in their local public libraries. And even where the
student can access a local library, it is rare that public or even private libraries hold
copies of relevant books or indeed hold enough copies of essential texts and
materials. In the past, it appears that this was not as much of a problem as it is today;
one book was simply duplicated for distribution to many readers. (For example as a

191 See Section 6, Glossary.

192 Philip G. Altbach, 'The Subtle Inequalities Of Copyright', Bellagio Publishing Network at
http://www.bc.edu/bc_org/avp/soe/cihe/publications/pub_pdf/copyright.pdf

193 Laura N. Gassaway, 'Impasse: Distance Learning and Copyright' at
http://moritzlaw.osu.edu/lawjournal/gasaway.htm (last visited 17 Apr 2005)

97

student, one text book used for the Jurisprudence and Social Foundations of Law
modules was available at the University of Nairobi's Faculty of Law Library both in
the original and in the duplicated form.) However, the increased protectionism
ushered in by the TRIPS Agreement means that these libraries can no longer afford to
do that and thus there is a chronic shortage of books and materials for students. With
neither access to journals nor online materials available on university campuses, this
means that the distance learning student has to choose between attending lectures in
order to get information or forfeiting certain subjects in which the needed materials
are too costly; in the end, this defeats the purpose of having a distance education
programme.

In the absence of the use of course packs, it is up to the student to supplement
his/her own reading or research with whatever materials can be afforded. For many
students, the prices of materials and books are too dear and many turn to
photocopying the books at a fraction of the cost. 194 However as international pressure
mounts for the stiffer enforcement of intellectual property rules, many students will
not be able to do this in the near future... or do so legally. Researching for and
obtaining material via the Internet is also an expensive affair as not only does it
involve commuting to and from the towns that provide the service, but also includes
the cost of using Internet facilities at cyber cafes, usually charged by the minute. This
is a further hindrance to many students.

Because of the significant fees and expenses incurred by students on distance
learning courses, institutions that provide distance learning programmes are often
faced with the burden of obtaining and providing teaching materials, reference
books, and even access to revision papers. Most of these are obtained from western
countries and is therefore a costly affair. Not only do they have to make regular
'affiliation' payments, they must meet other criteria such as provision of library
facilities, reprographic facilities, and access to 'relevant IT/ Computers' in order to
obtain and retain accreditation status as outlined by the Association of Business
Executives. Such criteria refuse to acknowledge the widespread poverty in many
parts of the South or even the fact that a mere 8% of the rural population in many
developing countries are served by electrification. 195 As a result, many in rural areas
are denied access to even a narrow range of educational material and courses.

Producing course packs

Where an institution is able to produce its own course packs, as does the Strathmore
University, then the issue of copyright is no longer straightforward. Often, course
packs will include articles, tables, photographs, newspaper clippings, extracts from
books, music, etc. that are taken from other sources. The problem is indeed far from
simple for distance learners. The 'fair use' exemption to copyright, as found in S.26
(1) of the Kenya Copyright Act, which permits only the copying of two short passages
of a work, is simply derisory. In addition, this 'fair use' provision is only applicable

194 The photocopying charge in Nairobi- Kenya for example ranges from Kshsl.50 (USD 0.02)
to Kshs. 3 (USD 0.04) per A4 Sheet. (Exchange rate obtained using Universal Currency
Converter at http://www.xe.com/ucc/convert.cgi)

195 Daniel M. Kammen 'Household Power in a New Light: Policy Lessons, and Questions, for
Photovoltaic Technology in Africa' Tiempo: Global Warming and the Third World Issue
No. 20 (1996), p. 1 - 8 at http://ist-socrates.berkeley.edu/~rael/tiempo.html

98

to institutions registered under the Education Act. This effectively prevents the use
of such materials in community learning centres without the payment of royalties or
licence fees. These fees are unfortunately passed on to the locals, making it more
expensive for those in rural areas where such community centres play a pivotal role
in adult education and vocational training.

As a result, institutions are then forced to rely on either material already in the public
domain or seek permission from the copyright holder to reproduce the work for such
purposes. Such permissions can take months to process and as the duration of
copyright lasts for 50 years or 70 years (or longer) after the death of the author 196 ,
many of the works in which copyright has reverted to the public domain may not be
relevant in today's world. The state of science, for example, is rather different today
than it was in the 1950s.

One alternative is being tried, though still on a small scale. Steve Foerster of the Free
Curricula Centre (FCC) states that it may be more effective in the short run to
refurbish old texts and write new ones than to try and overcome what he calls "the
Intellectual Property lobbying juggernaut." This is the rationale behind FCC's move
to attempt to write and provide free textbooks to those in the developing world. 197

Copyright laws also serve to hinder the assimilation of knowledge by local
communities by granting monopoly rights of translation to the copyright holder. 198
Lecturers and institutions could find themselves facing law suits if they attempted to
translate such works. And with over 40 tribes in Kenya alone, all with different
dialects, 199 the translation costs of books can run into the millions of dollars,
especially because for each dialect, a separate licence must be obtained. Thus the only
book widely translated remains the Bible. For this reason, education in developing
countries is seen as synonymous with learning the languages of the countries of the
West, for it is the only means to obtain material, both in the online and offline
worlds.

Even though limited, the use of online programmes for distance learning as done by
the AVU also faces several copyright hurdles. Putting materials in digital formats
involves using multimedia technology to develop and deliver the coursework and
assessments. And this means that broadcasting issues and licensing use of software
also comes into play. According to Pauline Ngimwa 200 , initially the University tried
to broker education programs from outside Africa which were to be delivered to its
students. This approach, however, was soon abandoned as this mode of delivery
proved very expensive; there was a high cost of clearance licences for such activities
and broadcasting, distribution, and copying were among other restraints. This has
now forced the AVU to look to their partner institutions to develop and provide their
own materials. Again, this raises the question of ownership of the content. Observers

196 p or more on the duration of copyright, see Section 4.2.

197 The group's website is http://www.freecurricula.org/

198 p or more on translation and copyright, see Section 4.11

199 See more on Kenya's language distribution at
http://www.kenyalogy.com/eng/info/pobla4.html

200 Pauline Ngimwa, 'Copyright And Open Distance And E-Learning (ODeL): The AVU
Experience', presented at the African Copyright Forum: An International Conference, 28th
30th November 2005 Kampala, Uganda

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fear that private institutions, which as noted above provide most of the distance
education programmes in Sub Saharan Africa, will prefer to keep ownership rights to
themselves and make profits from that material. Again, valuable knowledge for
students would be retained behind the closed gates of copyright-induced pricing.

As has been illustrated above, the use of distance learning has been hampered
because of the operation of increasingly restrictive copyright laws. As it stands, any
calls to end poverty in these countries will not be fruitful if the inhabitants do not
have the knowledge on how to best use the resources available to them. Copyright
laws then work contrary to their supposed purpose - to stimulate creativity - by
keeping that knowledge the property of a select few, and causing a waste of
resources in 'reinventing' the wheel. Perhaps when the necessity of encouraging
distance learning is grasped by the leaders in the countries of the South, we may see
a significant push towards its development.

4.4 How copyright hinders librarians in providing services to library
users

Copyright and intellectual property protection impinges in different ways on the
practices of librarians as individual professionals, on libraries as institutions of

various kinds (public, commercial, and academic), on the professional organizations
of library workers, and to some extent on 'librarianship' as an idealised
amalgamation of all of the above. This is almost always in respect of patrimonial or
economic rights, and usually has little or nothing to do with moral rights, either in
law or principle. To the extent that such protection limits or inhibits them from
providing service to users, some librarians, especially in countries of the South, have
begun to express a not fully articulated uneasiness with the way that the copyright
regime appears to favour the commercial interests of publishers over a hypothetical
'right to knowledge'. In this section of the dossier we will examine the hidden
assumption that library collections harm publishing, the idea that librarians have a
moral duty to police copyright compliance among users, the impact on libraries of
multiple layers of protection for digital content, and whether the librarian's first duty
is to the library user.

Libraries and Public Lending Right

At least some publishers and booksellers have
always believed that the 'free' availability of their
books in libraries constitutes a threat to their
commercial interests, and is likely to harm sales.
Logically enough, those who hold this belief are
willing to use copyright law and any other
available mechanisms (see below) to protect their
perceived interests and to recover what they see as
lost revenue, even if this could mean that libraries
might not function as well as they would
otherwise do. Two centuries ago, when the first
'circulating libraries' (the precursors of today's
public libraries) were established, the London

Knowledge is not a commodity, and can

never be one. Knowledge is the distillation

of human endeavour and it is the most

profound collective good that there

is. ..Education must embrace the

intellectual, cultural, political and social

development of individuals, institutions, and

nations. This 'public good' agenda should

not be held hostage to the vagaries of the

market.

Alec Erwin (former South African Minister of

Trade and Industry), ANC Today, Vol. 3, no.

41, 17-23 October 2003.

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bookseller James Lackington (1746-1815) argued against this perspective, writing
that:

When circulating libraries were first opened, the booksellers were much
alarmed, and their rapid increase, added to their fears, had led them to think
that the sale of books would be much diminished by such libraries.

However, Lackington continued, the availability of books in the circulating libraries
actually had the opposite effect:

[. . .] experience has proved that the sale of books, so far from being diminished
by [libraries], has been greatly promoted, as from those repositories many
thousand families have been cheaply supplied with books, by which the taste
of reading has become much more general, and thousands of books are
purchased every year by such as have first borrowed them at those libraries,
and after reading, approving of them, become purchasers. 201

It is unclear whether Lackington' s optimistic conclusion was supported by any
empirical evidence at the time, but it is certain that in the two hundred years since he
wrote, publishers, booksellers and librarians have existed in uneasy symbiosis, at
least as far as intellectual property rights are concerned. This is primarily because
their interests sometimes clash: publishers and booksellers are in the business of
selling as many books as possible in order to make a profit, while librarians are in the
business of meeting the information needs of their users.

In fact, Lackington' s argument has been ignored in modern practice, most especially
and specifically by the introduction in many countries of Public Lending Right (PLR),
which, admittedly, is aimed at helping authors rather than vendors. 202 It is hard to
argue against the proposition that by introducing what is effectively a low level tax
on the borrowing of books from libraries the state is able to redistribute some
revenue to those authors whose books are actually read. 203 Such a proposition
appeals to most people's sense of natural justice. Whether the author in question is a
best seller like J. K. Rowling or a struggling Grub Street hack has no bearing on the
issue. Naturally enough, in those mainly developed countries where writers'
organisations exist, such bodies are noisily in favour of PLR - it delivers cash to
members and shows that the organisation has actually achieved something concrete
in their interests.

The problem, however, is that the principle underlying PLR is both muddled and also
has far-reaching implications. First, the unexamined assumption is that the existence
of public libraries does in fact actually harm book sales. The counter argument, of
course, is that without public (and other) libraries many published works would
scarcely sell a single copy. Like the argument about music downloading through
Napster, it is extraordinarily difficult to prove the first part of the case either way,

201 Quoted in S. H. Steinberg, Five hundred years of printing (Harmondsworth: Penguin,
1961) p.260.

202 p or an excellent factual introduction to PLR, see the IFLA website at
http://www.ifla.org/III/clm/pl/PublicLendingRigh.htm.

203 -phg plr organisation in the United Kingdom actually publishes useful statistics on the
popularity of various categories of books year by year.

101

since it rests on the extremely shaky supposition that a book borrowed (or a song
downloaded) is equivalent in some linear way to a book not purchased (or a CD not
bought). 204

The second assumption underlying the PLR is that second or third or fourth readers
of a book are also in some way depriving an author of sales (the first borrower is
presumably covered by the fact that the library did pay for the copy), and that the
author must therefore be compensated. This is as shaky a proposition as the other,
and for the same reasons. Virtually any copy of any book ever bought that is worth
reading has been read more than once, and by different people, within a family or
among friends or colleagues, or by buyers of the copy second-hand. The suspicion is
that if it were a practical proposition, some kind of tax would be introduced to cover
this too, by analogy, and this suspicion is supported by experiments with formats for
digital content that would allow access only a defined number of times (one viewing
of a DVD, two readings of a text, three hearings of a musical piece: if you want to
know what rights holders would like to do in the print environment, look to what
they are doing in the digital one).

This matters, of course, because public libraries in practice support popular
education in both a formal and an informal sense, and the more expensive they
become to run, the more likely they are to introduce access charges or membership
fees (as is already the case in Johannesburg, South Africa, for instance). At the very
least, books that might otherwise have been acquired are not obtained. Thus, the
poorest citizens, those who are arguably most in need of library services, are
excluded or are less able to satisfy their information needs.

Do Librarians have a Moral Duty to Police Copyright?

Many librarians worry about copyright issues mainly because they are frightened
that either their institutions, or they themselves as individuals, may be held
responsible for copyright infringements by library users, by aggressive and well-
funded RROs or publishers. This fear has virtually nothing to do with offences
against so-called moral rights (plagiarism, forgery, unauthorised publication) and
almost everything to do with offences against patrimonial rights (photocopying or
scanning of content beyond the limits allowed by fair use, fair dealing or local
custom). Historically, it is a phenomenon of the age of reprography: before the
advent of publicly available user-operated dry photocopying in the mid-1970s,
libraries had little to worry about. However, photocopiers were followed by
computers and the Internet, and now high quality scanners link the worlds of print
and digital content, so that any user smart enough to push a green button can make a
complete copy of anything at all in some unsupervised corner of the library.

204 The economist Stan Liebowitz, for example, has shifted his position on this issue.
Originally very sceptical of the idea that MP3 downloads harmed the recording
industry, by 2003 he was less so, writing cautiously that 'MP3 downloading does
appear to be causing harm. No other explanations that have been put forward seem to
be able to explain the decline in sales that have occurred since 1999. Still, it is not clear
that the harm will be fatal [to the industry] .' See 'Will MP3 downloads annihilate the
record industry? The evidence so far' (Dallas, June 2003), p.2, emphasis added.
Available http://www.utdallas.edu/~liebowit/intprop/records.pdf.

102

The librarians' concerns are reflected in official statements by professional
associations, such as the following extract from an IFLA (International Federation of
Library Associations) document published in August 2000:

Librarians and information professionals recognise, and are committed to
support the needs of their patrons to gain access to copyright works and the
information and ideas they contain. They also respect the needs of authors
and copyright owners to obtain a fair economic return on their intellectual
property. Effective access is essential in achieving copyright's objectives.
IFLA supports balanced copyright law that promotes the advancement of
society as a whole by giving strong and effective protection for the interests of
rights-holders as well as reasonable access in order to encourage creativity,
innovation, research, education and learning.

IFLA supports the effective enforcement of copyright and recognises that
libraries have a crucial role to play in controlling as well as facilitating access
to the increasing number of local and remote electronic information
resources. Librarians and information professionals promote respect for
copyright and actively defend copyright works against piracy, unfair use and
unauthorised exploitation, in both the print and the digital environment.
Libraries have long acknowledged that they have a role in informing and
educating users about the importance of copyright law and in encouraging
compliance. 205

The second paragraph of this statement is especially interesting, since it represents a
strong expression of what we might call the 'policing role' position for librarians
with regard to copyright and intellectual property rights. Libraries and librarians are
presented as enforcers and controllers on behalf of the vendors and publishers whose
economic interests are supposedly in play, as active defenders of those interests, as
encouragers of compliance. What is missing is any justification or argument as to why
libraries and librarians should take on such a role, especially if the law is vague or
silent, and especially if the role requires them to act against the interests of their
clients. This is not to suggest for a moment that librarians should become active
violators of the law, of course, and they should be well enough informed to be able to
advise their users on what is permitted and what is not.

We suggest, in fact, that the librarian's first duty is to satisfy the user's information
needs (not necessarily the same as her information wants), and to do so within the
law of the land. This does not imply, either directly or indirectly, any duty to defend
the intellectual property rights of publishers or authors, who must look to their own
interests in the matter. Indeed, in questions of fair use or fair dealing, it is clearly in
the interests of users that librarians should advocate and 'actively defend' as broad
an interpretation of what is permitted as possible, rather than the narrower one
normally favoured around the world in different jurisdictions by corporate rights
holders. In the scale of such affairs, the duty of 'librarianship' is clearly, in our view,
to add weight to the side of the user to attain the famed 'fair balance' of copyright
discourse between creators and consumers of information.

205 Thg ifla Position on Copyright in the Digital Environment (August 2000), available at
http://www.ifla.org/III/clm/pl/pos-dig.htm [accessed 6 February 2006].

103

Layers of protection of digital content

In libraries in those less developed countries with a modern ICT infrastructure, such
as South Africa, Brazil or India, problems are increasingly arising from layers of
intellectual property protection that are additional to copyright. These include the
terms and conditions of the access contracts to the vendor's databases (commonly
called licences), as well as technological devices in both software and hardware, and
new laws that criminalise any kind of circumvention of such devices (anti-
circumvention laws). This problem affects all libraries all over the world, but the
point is that it impacts on developing countries disproportionately, since they
probably do not have funds available to pay extra licence fees, and may not have the
capacity to negotiate better licence terms or indeed to lobby for better copyright laws.

Access licences, like most contracts, can be assumed to mean exactly what they say,
no more and no less. Thus, access to a database of newspaper articles or academic
journals does not confer upon the library permission to perform the same set of
practices that would be possible with a printed set of the newspaper or the academic
journal. Interlibrary loan may not be possible, for instance, and the access to the back
set may disappear if the current subscription is discontinued. Indeed, if the back set
goes far enough back, some rules may still be imposed even though the journal is in the
public domain, i.e. out of copyright. In addition, digital formats change rapidly, and
long term duration remains a major concern. The extreme convenience of digital
access for authorised users in the short term is thus offset by a series of difficulties to
which the solutions are as yet far from clear.

Technological protection and anti-circumvention law add yet another layer of
protection to content and make the provision of library services difficult. Each
database behaves differently, requires the user to learn a different set of protocols for
access, searching and downloading, and imposes a different set of rules on what
behaviours are permitted or forbidden. Librarians are responding by building portals
with federated searching across multiple databases, and simple URL resolvers to
allow seamless downloading of full text content from searches which produce
metadata result lists. Nevertheless, in some academic libraries, for example, outside
researchers who traditionally have been welcome to use print collections on payment
of a nominal fee, are now formally excluded from access to all digital resources,
mainly because it is too complicated to work out who might have access to what
under which conditions, from the range of licence contracts.

In sum, attempts to co-opt librarians and information workers in defence of existing
copyright regimes should be resisted, at the very least because such a role has the
potential to clash with their primary duty to their clients. Second, it is clear that
copyright rules often prevent users from easily or conveniently obtaining what they
want or need, in the form they want, especially in poorer countries. That said,
authors in particular have a legitimate interest in protecting their patrimonial rights
from exploitation by libraries as much as from exploitation by corporations. The
trick, as always, is to find a way of doing things that allows for free access, while at
the same time allowing authors to benefit from their creative efforts. It is hard to see
how the present globalising copyright regime, given current trends, could support
such a happy outcome even in theory.

104

How copyright makes libraries less efficient: some examples

a) Academic journals

Most academics publish articles and books in order to enhance their reputations,
persuade their colleagues that their arguments are correct, and to increase their
chances of promotion or of obtaining a better position elsewhere. It is unusual for an
academic to receive any direct payment or royalties for an article, and the amounts
earned from the majority of academic books are negligible - most are published at a
loss or subsidised.

Traditionally, an academic publishing a journal article is aiming for the widest
dissemination of her ideas possible, and access to the complete scientific record is
widely regarded as being fundamental to scientific method. That is how the system
of distributing off-prints developed, as well as inter-library loan. Most academics are
therefore mainly interested in so-called 'moral rights' (being identified as the author,
and not having the text altered), rather than in a revenue stream. Library networks
and photocopy machines are fundamental in this process.

However, things are changing for the worse. Until the 1960s, academic journals were
published mainly by learned societies. The takeover of academic journals by
commercial publishers in the last half century has created a new and unsustainable
model of scholarly communication. Commercial publishers charge high prices, and
in the digital environment are able to do what they would like to do in the print
environment, namely restrict the free transmission of information between
individuals and institutions unless payments are made. This has an especially severe
impact on libraries in developing countries, which cannot afford to pay $8 or $10 for
a single article offprint.

Copyright and licence rules can thus increasingly be seen as preventing 'learned men
and women' from writing 'learned books', as the scientific record is privatized rather
than socialised.

b) Photocopying and short loan services

A related problem exists at undergraduate level in academic libraries in developing
countries, where home-made course-packs are commonly assembled by local
lecturers for use as textbooks in local courses. Alternatively, lecturers may place
multiple copies of texts in library short loan or reserve departments for student use.
In middle income developing countries such as South Africa, however, institutions
are coming under increasing pressure from local RRO's to sign up on 'blanket
licences' for library-related photocopying activity, which are calculated at high pro
rata rates and add significantly to the cost of higher education. Thus academic
libraries end up paying fees for photocopies that, if they were made by individual
students one by one, would certainly fall under the fair dealing or fair use
exemptions that developed in the 1970s.

c) Libraries and the Internet

The Internet is a delivery mechanism for texts and information. Some documents are
prepared and posted in formats such as the widely used proprietary Adobe PDF

105

format or the generic Postscript format, that are clearly intended for print-out.
Others, in HTML, may be transitory for one reason or another, that is to say, there
may be good reason to suppose that a particular Website may not be permanently
available.

However, librarians have learned caution in these matters. It may be unclear whether
an author or publisher who posts a PDF text does in fact intend to allow a library to
print it out and add a paper copy to the collections, especially when the item is also
available through the conventional book trade. Even 'ripping' and storing a Website
that is about to disappear may in fact be illegal. Again, such activities cannot
reasonably be argued to represent lost sales in most cases, especially in the
developing world.

d) Access for the visually impaired 206

Only five percent of visually impaired people in the developing world have access
to Braille materials. This can be partly explained by the fact that Braille materials are
expensive, but in many jurisdictions copyright legislation further increases the cost of
the materials, since permission is needed to transcribe copyrighted content into the
format. The rights holder may legally charge a fee, adding to the costs, and perhaps
making it completely unaffordable. He or she may even simply refuse permission. A
library - even a library for the visually impaired - may not legally undertake such
transcriptions without permission and payment. Although the United States and the
United Kingdom have enacted legislation to allow copies for the visually impaired
to be made without obtaining the permission of a rights holder, this issue remains a
major problem in many countries around the world.

Libraries and copyright restrictions in the South: evidence submitted by
librarians

Here are some examples of how copyright laws impact on public and university libraries in
the South. The state sector is generally much smaller and less well-funded in countries of the
South than that which exists in the North and, as a result, the imposition of stricter copyright
laws often have an even more chilling effect on the use of and access to books and other library
materials. Book purchasing budgets are also comparatively more constrained than in the
North and the increasingly high cost of books often bites even harder. (Copyright laws give
publishers the ability to limit access to cheaper alternatives, such as photocopying books.) In
other countries of the South, librarians sometimes act as "copyright cops" and, because of the
precarious financial position of many such libraries, are excessively worried by potential
copyright violations.

1) Negotiating a better deal

Subscriptions to e-journals often do not allow a subscriber to keep copies of the issue
they have paid for; rather, it is the subscription itself that permits access to the
archives. So when you stop your subscription, there is nothing to show for what was
paid for. This creates a dependency on the provider for many years. As one librarian
explains, "when a library subscribes to a print journal and the subscription is
cancelled, the publisher does not drive up to the library and take away the back

206 p or more on this topic, see also Section 4.10

106

issues in a big truck. This is effectively what happens when a subscription to an
electronic journal expires."

The vendor licences that many universities are required to use allow the subscriber
to save copies of the article; for each additional copy, you have to make a separate
extra payment. If more than one copy is required, two different payments have to be
made, regardless of whether it is for the same article. These agreements prohibit even
making a photocopy of an article that one has paid for.

Nevertheless, libraries can work together in consortia to negotiate better prices and
access terms with publishers on a national, regional or sector basis. As a result,
model licences have been adopted by many publishers. The organisation Electronic
Information for Libraries (known eIFL.net) supports the development of library
consortia in developing and transition countries to gain affordable access to
electronic scholarly resources and research material. eIFL.net will negotiate licences
with publishers on a multi-country basis to leverage highly discounted prices,
alternative business models and fair terms for access and use.

The point about licences is that they can be negotiated. But isolated libraries in
developing countries may lack both the confidence and the skill to undertake this
tough process. The answer is probably two-fold: statutory compulsory licences and
building strong library consortia.

2) Colombia

The Colombian Nobel laureate of literature, Gabriel Garcia Marquez, has written a
book entitled "Memorias de mis putas tristes" (Memories of my sad whores). The book
is published by Random House, Colombia, which is the publishing division of the
German multinational corporation Bertelsmann. On the title page of the book, the
publisher has written that all rights are reserved and that not a single part of the
book can be reproduced by any means. But Random House has gone much further
and stated that the book should not be lent by any public institution, such as
libraries, without the authorization of the author and without the payment of extra
royalties to the copyright holder, that is, to Random House.

3) Uganda

The National Library of Uganda operates a service called the "Digital Book Mobile"
that attempts to make books available in parts of rural Uganda where they are
seldom found. Several years ago a visit was arranged for children attending the
'displaced schools' of Gulu, Uganda ; the 22 primary schools with more than 300
students are called 'displaced schools' because the children have been uprooted from
their home villages as a result of civil war and relocated in Gulu. The two-day event
was called "one of the rare occasions when children who in their existence share a
common daily experience of uncertainty converged in one place to indulge in
reading as a peaceful activity." 207

For the first time in their lives, hundreds of titles were made available for the
children's use; their teachers, who knew that most of the books were far too

207 Charles Batambuze, 'Bringing books to the troubled north: Digital Bookmobile visits
'displaced schools' in Gulu.' http://www.anywherebooks.org/gulureport.php

107

expensive for local schools to purchase, asked if it might be possible for some of them
to be reproduced for use in the future in Gulu-area schools. (Reproduction of whole
books is forbidden under copyright law, even if the books are to be used for non-
profit educational purposes. A report on the Gulu event says that the "most favourite
title for children in upper primary (to take home) was 'Alice's Adventures in
Wonderland' by Lewis Carroll." 208 It continues that "teachers showed very keen
interest in African Writers series which unfortunately is still under copyright
protection and so could not be reproduced or distributed electronically without
permission."

4) Francophone West Africa

One continuing colonial 'relic' in the countries of 'French-speaking' West Africa is
that they still use a 'droit d'auteur' copyright system which privileges the so-called
'moral rights' of authors; this system significantly reduces what are called 'fair
dealing/fair use' exemptions. It has been reported that photocopiers at a university
library in one such country were being used for unauthorised copying and that when
the university was having its annual inspection as a university, conducted by the
'mother university' in the United States, this fact was revealed. The African
university was evidently told that this had to be corrected by the time of the
inspection in the following year or it might lose its accreditation. As a result, a senior
university official reportedly had all of the public photocopiers removed from the
library.

5) South Africa

Librarians are restricted from digitising a valuable national collection, which is
rapidly deteriorating and will soon be unreadable, because individual copyright
clearance is necessary for the digitising of each item. Acquiring such permission is a
cumbersome and time-consuming process ... and sometimes unsuccessful. Some
rights owners cannot be located or traced; some simply refuse to give their
permission; some want to be paid high fees or lay down strict conditions on the use
of the copyrighted materials.

6) Ethiopia

A survey in the 1990's revealed that the library of Addis Ababa University in
Ethiopia was forced to cancel its subscriptions to a total of 1,200 academic journals. 209
(The same survey found that the library at the University of Nigeria and the
University of Yaounde's Medical Library in Cameroon were forced to cancel,
respectively, 824 and 107 academic journals.) A 1995 study of this Ethiopian
university system revealed that only 4.2 per cent of the total book titles had been
published since 1985 and "consequently the vast majority of books held are old and
may be considered out of date." 210 One of the largest academic journal publishers, the

208 Ibid.

209 Damtew Teferra, Knowledge Creation and Dissemination in African Universities with
Special Reference to ICT, in African Universities in the Twenty-First Century, ed. by Paul
Tiyambe Zeleza and Adebayo Olukoshi, Vol. 2 ( Council for the Development of Social
Science Research in Africa, 2004)

210 Ibid. pg. 392

108

Elsevier Group, had a turnover of £4,812m for the financial year ended 31 December
2004, a sum greater than the combined national revenues of Mauritius, Maldives,
Madagascar, Mozambique, Seychelles and Botswana. 211

4.5 Copyright laws add to other restrictions on learning in rural
South Africa: an October 2005 survey from Mpumalanga

South Africa has nine provinces. Mpumalanga is the seventh largest province and is
mainly rural in nature. It is located in north-east South Africa, re-organized from the
south-eastern province, formerly known as the Transvaal. Its north-western border
with Northern Province is largely defined by the borders of former Bantustans
('independent' Black homelands during the Apartheid regime), namely, former
Bophuthatswana, KwaNdebele, KaNgwane, Lebowa and Gazankulu. These rural
regions all have a high level of poverty and unemployment. Mpumalanga shares its
borders with four other provinces, namely, KwaZulu-Natal, Free State, Gauteng and
Northern Province. Mpumalanga also has a common border with Mozambique
running roughly due north from the Swaziland-Mozambique border along the
watershed of the Lebombo Mountains.

In October 2005, the Mpumalanga Department of Education conducted a survey in
some of the rural schools, literacy centres and adult basic training (ABET) centres
under its jurisdiction, covering a wide area of Mpumulanga province. The
questionnaire did not distinguish between schools, literacy or ABET centres, as they
were all surveyed as "learning centres" in rural Mpumulanga. A survey of the
remaining schools in the region (excluding literacy and ABET centres) has also been
conducted, but the results were unfortunately not available for the purposes of this
document.

The following results emerged from the 166 schools, literacy and ABET centres
(hereinafter called "learning centres") which responded to the questionnaire:

SO

All the respondents indicated high levels of poverty amongst learners. Most
parents or adult learners were either unemployed or farm labourers earning
very low wages. Most parents were unable to pay the tuition fees, let alone
pay for reading material or copyright fees. A large percentage of the children
at the schools were orphans, who were totally dependent on aging
grandparents or one-parent households, where the incomes were very low.

SO

The number of learners recorded in the responses totalled 48,264, with 1,616
educators/facilitators. The teacher/ learner ratio was 1:29.

SO

211 Kaushik Goburdhun, Copyright is an economic tool that impedes the sharing and
diffusion of knowledge, Unpublished LLM Essay. Kent Law School, January 2006.

109

Of the 166 learning centres, 60 (or 36.4%) did not have electricity. 45 (or
27.2%) of the learning centres had no running water.

SO

9 learning centres had no classrooms and had to make use of other available
buildings.

SO

155 of the learning centres received free basic textbooks from the Department
of Education, whilst the remaining 11 learning centres were either subsidized
or had to pay for textbooks from their own budgets. The majority of learning
centres reported a shortage of textbooks or non-delivery of textbooks from
the Department of Education.

SO

60 learning centres could not make photocopies at all, since they had no
electricity. Many of them said that if electricity and photocopiers were
available to them, their teaching programmes would be enhanced.

SO

The majority of learning centres said that photocopies were necessary or
would be very helpful to educators and learners, since basic textbooks needed
to be supplemented with other information. Some of the problems they
encountered were as follows:

a) Textbooks for the learners did not always arrive in time, or at all;

b) Insufficient numbers of textbooks were distributed amongst learners, so
many did not have the required reading material to do their studies;

c) Reading material often had to be shared. This was problematic when
learners had to do individual tasks. Teachers were prevented from setting
assignments or preparing lessons or activities from books which were
limited in numbers;

d) The high price of books and other reading material was beyond the means
of parents and adult basic learners, who were mostly unemployed or
earned very low wages as farm labourers;

e) Additional reading materials, such as newspapers and magazines, were
necessary for projects and to supplement information in the textbooks,
but were unaffordable. Learners needed to access maps, photographs,
drawings, etc. in resources, other than in prescribed textbooks. If
photocopies of diagrams, pictures, etc. were not permitted, learners had
to hand-draw them;

f) Libraries were either too far away from the learning centres; alternatively,
they were under-stocked and lacked adequate resources;

110

g) The majority of respondents stated that photocopies were necessary for

effective teaching, but that copyright laws restricted them from

distributing relevant material to learners,
h) Performance levels were being affected by inadequate reading resources

and lack of access to relevant information;
i) Learners could not participate or learn properly, if they were limited in

their choice of learning materials.

SO

Many learning centres said that obtaining copyright clearance was tedious
and unaffordable. Some recommended standardized clearance procedures
via the Department of Education. One learning centre stated that if educators
had to keep to the copyright law, their teaching/ learning aids would be very
restricted.

SO

22 of the learning centres were not sure how copyright laws impacted on their
lives, as they either did not have electricity or were not allowed to photocopy
at all. Some claimed that they feared prosecution under the Copyright Act if
they photocopied material. Most respondents indicated that copyright laws
were a problem in that they affected access to information. Some requested
that special provisions (or exemptions) be included in the copyright law for
poor schools, literacy centres and adult basic training centres. Many felt that
the current copyright laws hindered teaching and prevented educators from
providing up-to-date, relevant information

SO

Although 99 of the learning centres said that they discussed copyright with
learners, few seemed to have a clear understanding of what copyright was
and its impact on teaching and learning. Some seemed to understand the
concept of plagiarism and some recognised that authors needed to receive
money for their books. However, very few of the learning centres seemed to
be aware of the exemptions permitted for educational purposes under Section
13 Regulations of the South African Copyright Act No. 98 of 1978 (as
amended). Although these exemptions are inadequate in the context of a
developing country, they do allow limited multiple copying for teaching
purposes in a classroom situation; such exemptions do not, however, cover
distance learning or informal teaching.

4.6 Copyright gets in the way when teachers want to provide
student course & study packs

In South Africa, as in many other countries in the South, academic libraries which
service universities have serious budgetary restraints. As a result, the development
of their collections is severely hampered by a lack of adequate funds, high exchange

111

rates for foreign works, a 14% Value Added Tax on books and learning materials,
high prices of printed and electronic publications, and databases. With student
numbers increasing, the demand for material held by libraries is also increasing,
sometimes many times over, and libraries are simply not able to provide enough of a
range of materials, let alone enough copies of needed materials, for their students,
researchers and other patrons. In many academic disciplines, e.g. law, psychology,
international relations, political studies, business administration, more than 1,000
students may be taking the same course and their legitimate requirements are far
beyond the capacities of even the largest and richest libraries in the South.

Faced with this crisis, most universities in South Africa (as in some other countries in
the South) have attempted for some years to provide relatively-cheap course packs
(or study packs) of photocopied materials to their students. (Additionally, some
universities place photocopied extracts from books and journals on reserve or on
short loan shelves within their libraries to enable students to copy from them.) And
here is where the restrictions of copyright law come into play.

The use of transactional licences to 'clear' copyright

To produce a course pack, universities in South Africa are required to seek the
permission of publishers, who usually own the copyright, or from authors in the case
of unpublished material, out of print books or matters relating to moral rights.
(Copyright law does not provide exemptions for non-profit educational uses.) And
obtaining permission is a tedious and time-consuming process; in fact, publishers
don't really like the concept of course packs, they consider them unfair competition,
and would much prefer that students each purchased their own individual copies of
the original books. In most parts of the world, especially in the South, this is a
financial impossibility.

For tertiary institutions, the majority of works may be cleared by the South African
reprographic rights organisation 212 , DALRO, which has mandates from the majority
of South African publishers and those represented by rights organizations in
countries such as the United States, the United Kingdom, Europe, Australia, and
some other countries. Most of the licensing fees collected by DALRO in South Africa
are then paid to either foreign publishers or to foreign authors. 213 DALRO, however,
does not have a comprehensive repertoire and there are many excluded works and
publishers; in such cases, permission has to be obtained directly from the rights
holders.

For 'copyright clearers', as they are called, tracing rights holders is a real headache.
Many rights holders are no longer in business, have moved elsewhere, have become
defunct or have merged with other organizations. Some publishers have published
works which incorporates material from other published works and so permission
has to be obtained from the former publishers who are not always traceable. Some
publishers do not respond, some insist on high copyright royalties and restrictive
conditions of use. Some publishers deny permission and do not give reasons either.

212 For more on RROs, see Section 2.4

213 For DALRO's financial details, see Section 2.5.

112

All this takes a great deal of time and human effort; it involves what economists call
high "transaction costs." Permission has to be obtained prior to reproduction and,
given the delays, use of the material very often has to be abandoned or postponed
until permission has been received. Or alternatively, the permission often arrives
long after the material was needed and alternative or less relevant material has to be
used as a substitute. In short, much wasteful labour is expended. In addition,
copyright fees are expensive and are calculated on a 'per-copied page basis'. This
takes up a large part of a university's expenditure budget. There are some local
publishers who are willing to grant permission at a lower rate than DALRO or waive
fees altogether if the material is for non
commercial, educational purposes.

"Woe is the life of the modern day
student living in "Darkest Africa" for
obviously we are still being kept in the
slave quarters of the world. Harsh
words? My friends try and live in a
society where such Acts as the
Intellectual Property Acts of the world
[impede] your advancement in life."

Louise Szente (Durban, South Africa)
Misers or Sharers? WIPOUT Contest
Essay, 23 September 2001

In the case of disabled students, the problems

are exacerbated, as permission first has to be

obtained to make the photocopies for the

course pack. Thereafter, permission has to be

obtained to enable them to convert the material

into a more accessible format, e.g. Braille,

audiotape, or to modify or convert material

into a more visual format for deaf persons,

etc. 214 The technical conversion and manpower

costs to do this can be very expensive. In most

institutions in South Africa, this cost is borne

by the institution rather than the student personally, but some publishers insist on

direct payment from students before conversions can be undertaken.

When articles in an electronic (digital) format need to be used for the purpose of
inclusion in printed course packs, usage and reproduction will be determined by the
conditions of the licence and not by copyright law. If multiple reproductions are not
permitted in the licence, it is not possible to include that material in a course pack,
without permission. However, the South African Site Licensing Initiative (SASLI) has
negotiated various electronic licences for universities, which include provisions to
make electronic course packs and printed course packs. But in the case of printed
course packs, the reproductions cannot be made by downloading one copy and
photocopying the rest. (If done this way, copyright clearance would be necessary.)
The licences require that the copies be made on the online system, so that the hits can
be recorded by digital rights management systems. 215

At the moment, DALRO only provides a licensing system for photocopies for the
tertiary institutions. DALRO and the Publishers' Association of South Africa (PASA)
have been discussing Blanket Licensing for schools in South Africa for some time, but
the publishers are not in favour of a Blanket Licence scheme for schools. DALRO
therefore does not clear copyright for schools at all. Schools wanting to compile
course packs or study packs would have to apply directly to rights holders. If they
require material from foreign publications, they would have to apply overseas and
pay in foreign currencies which again creates high transaction costs. As schools do
not have the infrastructure, budgets or human capacity to apply for copyright

214 For more on copyright and the visually impaired, see Section 4.10

215 For more on digital rights management systems, see Section 4.8

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clearance on a transactional basis, many do not clear copyright at all. This is hardly
surprising.

Using 'blanket licences' to clear copyright

Some higher education institutions have entered into a so-called "Blanket Licence"
with the rights organization, which streamlines administrative and accounting
procedures for the institutions concerned. The Blanket Licence currently offered by
the rights organization in South Africa, i.e. DALRO, is expensive and does not
include various works, such as newspapers, online works and excluded works and
publishers, which have not given their mandates to DALRO. The list of excluded
works in South Africa is minimal but there are many excluded works and publishers
abroad. 216 So to call it a "blanket licence" is a misnomer.

The Blanket Licence is only offered to tertiary institutions and not to elementary and
secondary schools, where it would, in fact, be more beneficial. Many tertiary
institutions still obtain transactional licences, which in relation to Blanket Licence
per-page costs are more expensive, but this is determined on their usage of
photocopied materials and the number of full-time equivalent students (FTEs). The
Blanket Licence is calculated using a flat rate based on 200 pages per student,
multiplied by the number of FTE students (except doctoral students), plus the
Consumer Price Index percentage plus Value-Added Tax (VAT) of 14%. The Blanket
Licence only covers photocopied material and transient electronic copies and has
specific conditions on what portion of a work one can use. For instance, it permits the
reproduction of one chapter of a book or 10% of a book (whichever is the greater),
one article from a journal, and one case study or law report. Any portions required in
excess of these amounts plus electronic material would be excluded from the licence
and transactional licences would be necessary. Excluded works would also have to
be cleared via transactional licences.

Some institutions offer short certificate courses within their Faculties and provide
course packs to students. Some of these courses attract FTE subsidies and form part
of the DALRO Blanket Licence. However, many of the courses do not attract FTE
subsidies and are excluded from the Blanket Licence. This means that institutions
have to budget separately for these specific short courses and have to apply for
clearance on a transactional basis.

Unfortunately, DALRO focuses its attention on the government-subsidized tertiary
institutions and does not make much effort in getting the private institutions or
corporate organizations on board as far as copyright clearances are concerned. There
is wholesale infringement going on in private institutions and large corporations but
nothing is done about it, yet the government-financed tertiary sector is constantly
monitored and warned about possible litigation if they do not comply with the
copyright law. Schools that do want to comply lack the infrastructure or resources to
take part do so and so DALRO does not extend its services to them.

The above description is the general practice in South Africa. There are very few
rights organizations in other African countries. At last count, there were eight others,
most of which are hardly functioning at all. Most countries have far more pressing

216 These can be found on http://www.wits.ac.za/library/services/copyright

114

socio-economic issues to address than copyright issues and compliance levels vary
from country to country. They do not have the resources, infrastructure, and human
capacity to become copyright compliant, so what is the purpose of setting up an RRO
when it is set up for failure right at the start and when it would simply impose the
numerous restrictions and costs that are already faced in South Africa, the richest
country in Africa.

4.7 An academic from Colombia tries hard to do his research ...
with great difficulty

We know an academic economist working at a university in Colombia who
constantly comes up against serious obstacles if he needs to find a book to use for his
research. The under-funded library at his university in Bogota has gaping holes in its
collection; it does not hold, for example, many standard books that would be
available at even a second (or third) tier university library located in North America
or Europe. And so if a required book is not available locally, his only alternative is to
ask his university library to obtain the needed book on a short-term loan from
another library located outside Colombia; such a service is called "inter-library loan"
in some countries (or "document delivery" in others.)

But this University's library copyright clearance office has concluded that only one
chapter can be used from any one copy of the required book found in a foreign
library; this is how his University library interprets the so-called "fair use/fair
dealing" provisions of copyright law. So the book he needs cannot be sent solely
from another library or scanned by computer from a single copy located in a foreign
library. Instead, if there are, for example, 15 chapters in the required book, the 15
chapters must be obtained by photocopying or scanning from 15 different original
copies located in 15 different foreign libraries.

Not surprisingly, the individual chapters take a long time to arrive in Bogota and the
total cost of a 15-chapter book is US$150.00 (US$10.00 per chapter). Such costs come
out of the research budget of the academic which seldom match those available at an
American or European university. Moreover, because you cannot actually look over
the book (or even its table of contents) BEFORE you order it and pay US$150.00; the
actual book may not be very useful for your research when it finally arrives. And it
does not matter if the required book is out-of-print ... and hence cannot be
purchased even if you had sufficient funds. Copyright restrictions apply to many
out-of-print books.

Under these highly restrictive working conditions for researchers, directly
attributable to domestic and international copyright law, academics from the South
often find it very difficult to get much research and writing done. Or, if they do, they
do so with great fortitude.

115

4.8 Using the Internet in the South: a tangled web of copyright toll-
gates and "keep out" messages

Introduction

It must first be recognized that there is nothing close to universal access to the
Internet throughout the global South. A recent study conducted by the World Science
Project found that lack of Internet access by African scholars was an important
barrier to scholarly productivity. While computers and bandwidth do exist on
University campuses in Africa, there are not enough resources to make a positive
impact. 217 Increasing bandwidth and access to electronic communication is crucial to
further development in African universities. 218

It is easy to assume from a Western standpoint that the global information society
has become ubiquitous, but the vast majority of the world's population continues to
have little to no access to the Internet. Thus, for many people living in the global
South, the types of copyright barriers that make access to knowledge difficult on the
Internet are not relevant because access to the Internet is simply not an option. For
example, for students in Kenya, the issue is not access to the Internet, but instead
access to textbooks, which are in short supply.

However, even given the limited access to Internet service throughout the global
South, those who do manage to gain computer time to surf the web find that
increasingly roadblocks are put up to prohibit access to documents, papers, and
information. In this section, we will give a brief outline of the negative impacts of
several types of barriers to Internet access.

The dangers of Digital Rights Management (DRM)

Digital Rights Management (DRM) developed in response to wide-spread concern on
the part of content providers regarding what they call massive 'piracy' on the
Internet. The primary actors on DRM have been the entertainment and computer
software industries, both of which seek to limit access to movies, music, and
proprietary software. They want to hinder access to these products using a protective
layer of computer code that limits the possible uses of a product. DRM is as much a
problem for the overdeveloped world as it is for the global South, but when already
problematic access is combined with barriers to access the problem is exacerbated for
the global South. 2 "

A recent controversy regarding Sony music's DRM system highlights some of the
ongoing problems with DRM. Sony BMG Music Entertainment attached a hidden
DRM program to the CDs it was selling that, it turned out, opened up a sizeable

217 Gisele Dodji Dovi, 'More Internet Access Needed for Science to go Global/ Science and
Development Network, November 25, 2005. Available at:
http://www.scidev.net/News/index.cfm?fuseaction=readNews&itemid=2502&language=l.

218 Steve Song, 'Viewpoint: Bandwidth Can Bring African Universities up to Speed/ IRDC
Reports available at: http://www.idrc.ca/es/ev-84498-201-l-DO_TOPIC.html.

219 'France about to get the worst copyright law in Europe/ December 2, 2005. Available at:
http : / / www .boingboing.net/ 2005/12/02/ f rance_about_to_get_. html

116

security hole when used on a computer. 220 After the security problem was
announced, Sony had to issue a public apology and recall the CDs. Despite this
setback and the potential damage that could be caused to user's computers,
companies like Sony continue to seek methods for forcing DRM on the consuming
public.

As a recent report by the Electronic Frontier Foundation notes, the application of
DRM in the developed world has been relatively unsuccessful and is marked by
attempts to censor research and consumer revolt against the system. 221 They go on to
suggest that DRM in the global South will be problematic for the following reasons:

a) DRM systems overrule local copyright limitations;

b) DRM systems often assume infrastructure that isn't present in the developing
world;

c) DRM systems make rich-country assumptions about family and domestic life that
are inappropriate to many developing countries. 222

DRM in the developing world context can create a situation where technical
considerations will take precedent over domestic considerations and development
priorities. 223 Unfortunately, if a country is a member of WIPO, which most in the
global South are, they may have to sign on to anti-circumvention laws in order to
ensure the level of protection granted by international treaty. 224

The EFF recommends that developing country governments avoid using DRM
because it is an inherently flawed system that can only function in the presence of
strict anti-circumvention laws. Furthermore, DRMs are harmful to access to
knowledge through libraries and for disabled persons and can eliminate the
possibility of using Free and Open Software. 225

Other mechanisms for limiting access on the Internet

DRMs are not the only mechanism used to limited access on-line. Large numbers of
content-heavy websites come with password protection or toll gates to information.
These barriers are most prevalent in scientific journals, library databases, and
educational materials. In other words, the very knowledge many in the global South
may require access to in order to continue innovation and development is only
available for a price.

220 Paul Taylor and Aline van Duyn, 'Music Industry Asks Whether Fair Use is Fair Play/
FT.Com., November 28, 2005. Available at: http://news.ft.com/cms/ s/2594a9f8-603a-llda-
a3a6-0000779e2340.html.

221 Electronic Frontier Foundation, 'Digital Rights Management: A Failure in the Developed
World, A Danger to the Developing World/ For the International Telecommunications Union,
ITU-R Working Party 6M Report on Content Protection Technologies,
http://www.eff.org/IP/DRM/itu_drm.php.

222 Ibid.

223 Ibid.

224 Ibid.

225 Ibid.

117

For example, the Google Scholar web searching tool that is designed to access
materials on the Internet, which are published in scholarly spaces, often runs up
against roadblocks in providing material. Instead of access to the text, one is given
access to a place to purchase the article, often at a cost more expensive than the
original journal. Thus, in an effort to harness even more profits, many scholarly
journals continue to increase their prices and impose toll-gates on internet access to
their materials.

An example of a barrier to access is the following search - "Problems with DRM" in
Google Scholar. One of the top hits is an article by E.W. Felten titled "A Sceptical
View of DRM and Fair Use," in Communications of the ACM. However, to access this
article, one must have a membership in the appropriate organization or access to the
appropriate library database. Thus, the ultimate benefit of Google Scholar is
mitigated by the lack of access in the search. Of the materials that would be
searchable, few are available for the public to read without some conditions placed
upon access.

Of course a members-only organisation may make the argument that access to their
publications are a benefit of membership only and seek to exclude access to others
generally. While those in the global South have sought broader access to knowledge
for generations, those who see knowledge as a for-profit commodity have always
considered that knowledge comes at a price. We discuss the development of the open
access movement in later sections of this dossier, but this movement holds up the
promise of future knowledge sharing.

Even with the appropriate licences, fees, and memberships, the presence of DRM,
toll-gates and passwords ensures that content remains centralized. These
mechanisms have implications for the concept of 'fair use'. 226 When one is prohibited
from access it is unclear if any fair uses are left. As one member of the Copy/ South
group pointed out, libraries can only access on-line archival materials with a
subscription. If the subscription is ended then the library loses not only access to
current and future volumes, but to those it has paid for in the past. Paying a fee no
longer ensures continued access to a copy. Furthermore, for United States journals
and materials, access is dependent upon U.S. Foreign Policy. Access to educational
and scholarly materials for those in Cuba has always been stifled by the US. Syria
and Iran face similar embargoes on information from U.S. sources. Additionally, if
political conditions in a country were to change so would the access to previously
paid for documents.

Of course, downloading and copying back issues of all electronic journals is one
solution to the problems of continued access. However, under many agreements,
such copying may violate copyright law. For example, library licences in some
countries do not allow for the copying of articles and researchers must pay for each
individual access.

There are efforts to open the Internet up. For example, at the recent Internet
conference in Tunis, the creation of "The Development Gateway" funding by the

226 See Glossary.

118

William and Flora Hewlett Foundation was announced. 227 The Hewlett Foundation
has also funded the Creative Commons licensing scheme and the MIT
OpenCourseWare project. 228

In Africa, universities are beginning to form collective organizations to bargain for
better prices for Internet access. Africa is beginning to develop National Research
and Education Networks (NRENs) to bring costs down and increase access. 229 Steven
Song hopes that providing better access to communications technology may also halt
the brain drain as scholars seek better resources elsewhere. 230

Seeking to overcome the barriers to access that exist on the Internet is the subject of
other sections of the dossier. However, it is important to note that the problems with
barriers to access are not inherent and that with planning they can be overcome as an
alternative model for information sharing is developed and shared via the Internet.

4.9 Using intellectual property laws to prop up proprietary
computer software

Three legal regimes

Although computer software in its earliest days in the 1960s and 1970s (and, in
various ways, its most innovative days) was not protected by intellectual property
laws, three IP regimes have more recently been employed in some, though not all,
countries: patent law, trade secret law, and copyright law. Within the ever-growing
ranks of the free and open source software movement (FLOSS), it is now the accepted
wisdom that the patenting of software is a type of legal protection that should be
opposed and, where it exists, should be rolled back and not permitted again. There
are good reasons for this conclusion: the patenting of elementary programming
sequences creates innumerable and often expensive barriers which are difficult to
circumvent for those who want to write new software, including free software. Many
leading figures in the FLOSS movement, such as Richard Stallman and Bruce Perens
of the United States, have written at length about how software patents block free
software development. Perens concludes, "today, they are a nuisance; tomorrow they
could be much more" 231 and Stallman is much more scathing. 232 In Europe, a strong
campaign against software patents is being waged 233 and elsewhere, the dangers of
such a policy choice are also starting to be appreciated.

227 John Blau, 'Open Content Opens Doors to Opportunity/ Infoworld, November 22, 2005.
http:// www. infoworld.com/ article/05/ll/22/Hnopencontent_l.html?source=NCL-
TB2005-11-22. For more on the Development Gateway see:
http://www.developmentgateway.org.

228 Ibid.

229 Song, op. cit.

230 Ibid.

231 See, for example, Bruce Perens, 'Software Patents v. Free Software.'
http://perens.com/Articles/Patents.html

232 See, for example, Richard Stallman, ' Software patents victimise developers', ZDNet UK, 28
March 2002, http://news.zdnet.co.uk/software/ developer/0,39020387,2107481,00.htm

233 http://swpat.ffii.org/intro/index.en.html

119

Other commentators have explained how trade secret laws create barriers to
innovation, particularly as such laws reinforce the ability of proprietary multi-
nationals such as Microsoft to keep secret the all-important source and object codes
found in software, as well as other features. Cunliff explains the scope of trade
secrets:

Rather than focusing solely on expression [required for copyright protection]
or demanding novelty as a prerequisite to protection [ required, at least in
theory, to obtain a patent] , the law of trade secrets will protect the ideas
underlying particular software - including the software's structure or
architecture and organization, and various features, routines and processes
within the software, novel or not - so long as those ideas are not generally
known (or readily ascertainable from the marketed software) and give, or have
the potential to give, a competitive advantage by virtue of the fact that others
do not know them. 234

But as to the question of whether software should be protected by copyright laws,
there is virtual silence; it has essentially and mistakenly become a non-issue for the
FLOSS movement and many others. This disinclination— indeed often refusal— to
appreciate and critique the negative impact of granting copyright to software is a
relatively new development. When the protection of software by copyright laws was
first initiated, chiefly as a result of the 1978 US CONTU report, progressive legal
commentators and many people active in the development of software challenged
this legal development as highly retrogressive. Such voices are now stilled. And, to
be clear, this is a global issue, not one for the United States alone. The fact that both
the 1994 TRIPS Agreement (Art. 10 (1)) and the 1996 WIPO Copyright Treaty (Art.5)
state that computer programs, both in source and object code, must be protected by
copyright has further raised the global stakes, including for the South.

Copyright in software

Why this disinclination to challenge and criticise the granting of copyright in
software? After the US adopted software copyright in the 1980's, large multinational
software companies spent extensive time and resources lobbying for the creation of
similar standards and approaches in international copyright agreements. Their
efforts also extended to countries of the South. Peter Menell, writing in 1994, noted
that '[T]he United States government devoted substantial effort over the past decade
to browbeating most of the developed world into following its path. Neither the US
government nor the many entities desiring uniform protection for their products
across national borders are interested in starting a new fight.' 235

At the same time, some sectors of the highly positive FLOSS movement that came
into existence in the 1980s embraced the notion of 'copyleft'. This approach takes the
basic copyright notions of creating property rights in expressions - in this case, in
software code - and awarding the 'author' of these expressions exclusive rights. But

234 V.A. Cundiff, 'Protecting Computer Software as a Trade Secret', 507 Practicing Law
Institute (Patents, Copyrights, Trademarks and Literary Property Course Handbook Series)
761,1998.

235 Petej- Menell, 'The Challenges of Reforming Intellectual Property Protection for Computer
Software', 94 Columbia Law Review 2644, 2653 (December 1994)

120

the 'copyleft' approach then turns some of the consequences of this system on its head
and requires the sharing of the expressions. A good example can be found in the
GNU General Public Licence. 236

'Flipping' some of the consequences of copyright into their partial opposite,
'copyleft' appeared to be a useful tactic for some sectors of the FLOSS movement. In
fact, some in the FLOSS Movement strongly favour software copyright protection.
The group 'Copyright4Innovation', to take one example, states in its position paper:
"We believe that a system of copyright with fast, cheap and narrow claims will
provide the best opportunities for innovative software-related businesses." 237 It
continues: "Because copyright is free and already harmonised on a global scale it is
accessible to software authors worldwide, allowing those from developing countries
and small companies to compete on a level playing field with the large ones." 238
Other FLOSS websites speak of the 'positive nature' of copyright in all fields,
including software. Copyright laws and their ideologies have thus become
normalised and naturalised phenomena.

Others, particularly some of those within the Free Software arm of this movement,
argue that 'copyright' and 'patents' are radically different concepts and that they are
based on radically different ideologies. And so while they oppose software patents,
in part because such laws create serious roadblocks for software developers and their
own movement, they do not challenge software copyright and, in fact, they argue
strenuously against any questioning of the benefits, including in the South, of
copyrighting software. To some in this movement, copyrighting software simply
does not register as an issue.

This dossier is not the place to take up a wider debate about such issues. But several
matters do need re-iterating. First, the world's largest proprietary software firm,
namely Microsoft, did not gain its global monopoly position primarily through the
use of its software patents. Rather, its pre-eminent ranking was gained primarily
through the protection Microsoft gained from domestic and international copyright
laws, in addition to the advantages it gained from trade secret laws, the proprietary
standards it established, and the economics of what are known as 'network
externalities'. For almost the entire 20 years after Microsoft was founded in the
United States in 1975, the patenting of software was either forbidden or of negligible
importance and, even today, the patenting of Microsoft software is not at the
centrepiece of its corporate and computer power. Most other proprietary software
companies mirror this situation. Second, it is true some leaders of the free and open
source software movements may consider that the copyrighting of software does not
hinder the growth of their movement. But those who a) do not use or cannot use
such software and are forced to use proprietary software, or b) are not software
developers, that is, they are simply 'turn it on and use it' computer users and are
indifferent to whether their machine is powered by open source or closed source (i.e.
proprietary) software, do suffer many of the serious consequences that arise from the
copyrighting of software. These effects in the South are explained and documented

236 http://www.gnu.org/copyleft/gpl.html
237 Copyright4Innovation,

http://www.copyright4innovation.org/content/aboutus/statement.en.html
238 why Copyright Works where Patents Fail, Copyright4Innovation, at
http://www.copyright4innovation.org/content/whyitworks/index.en.html

121

below. And third, it is obviously a positive development for access to knowledge and
information across the South to have more and more computers in the South
powered by free and open source software; again, the reasons are detailed below. But
if the actual content being used or transmitted is expensive and restricted by
copyright-based toll gates - or more likely, if badly needed content for educational
and other social purposes cannot be accessed, used, and shared because of copyright
restrictions - the access "battle" in the South has hardly been won if the content
moving (or not moving) through free software is copyright restricted.

Beyond the 'cost of software' issue

The main question to examine here, however, is: what are the negative effects of
proprietary software on the countries of the South, particularly as compared to free and open
source software? 239 One caveat: While there are important direct financial benefits to
choosing the latter options, focusing exclusively on immediate cost issues tends to
narrow the stakes of the software use and accessibility debate.

In summary form, here are a number of answers to this question, many of which
relate directly to access issues and wider development issues. 240

o The fact that certain types of software are protected by various forms of
intellectual property rights significantly increases the initial purchase/ licensing
costs and the ongoing costs. If these restrictions were struck down, e.g., if the
copyrighting of software was not permitted or significantly narrowed in scope,
the cost of software would diminish significantly.

o When the per capita Gross Domestic Product (GDP) figures for countries of the
industrialised North are compared with those in the South, the effective costs of
proprietary software are particularly harsh in the South. For example, an average
person living in the United Kingdom would have to work 0.28 months (about 10
days) to purchase a Windows XP operating system and application program. In
Vietnam, identical equipment would require 16.33 months of labour and in
Bangladesh, 19.19 months. In the Democratic Republic of the Congo, the effective
cost of the Windows XP and Office software package would be US$199,394 and it
would take the average wage earner 67.83 months - more than five years - of
earnings to purchase this package. 241

o Licensing costs for proprietary software are notably onerous for governments in
countries of the South, including the relatively more prosperous ones. As John
Perry Barlow of the US Electronic Frontier Foundation said in a speech to the

239 For more on the advantages of embracing free software in the South, see Section 5.8 of this
dossier.

240 This section is a brief precise of a much longer 2004 report. Alan Story, 'Intellectual
Property and Computer Software: A Battle of Competing Use and Access Visions for
Countries of the South', Issue paper #10, International Centre for Trade and Sustainable
Development / United Nations Conference on Trade and Sustainable Development, Geneva.
May 2004. http://www.iprsonline.org/unctadictsd/docs/CS_Story.pdf . In the dossier, most
of the statistical and wider analytical material contained in that report is omitted and, instead,
this text makes a number of relatively short declarative statements.

241 See Story ICTSD, citing R.A.Ghosh, 'Licence fees and GDP per capita: the case for open
source in developing countries', First Monday, Vol. 12, No. 8 (December 2003).

122

World Social Forum in January 2005, "already Brazil spends more in licensing
fees on proprietary software than it spends on hunger." 242 (In Brazil, only about
10 per cent of the population own a computer at home and the government is the
country's biggest computer purchaser.)

The costs of proprietary software, both
the initial charges costs and ongoing
licensing fees, are another financial
barrier to accessing the Internet. By
comparison, there are no ongoing
licensing fees for free software.

In the South, only a relatively small elite
can afford to purchase the licence for off-
the-shelf (and 'non-pirated') proprietary
software. As for schools, "With the
exception of a few parts of South Africa,
there is not a single government or a
school system anywhere in Africa that can
afford the costs of a Microsoft licence for
their school systems." 243

"The beauty of free software. . .is that the

freedom you receive is the freedom to

learn from other people's techniques,

strategies and focus on problem solving.

Something that has been unheard of in

this industry (although it is a pretty

common thing in science). So people

have a chance to join the effort, and be

part of the team of people that are

producing knowledge, culture and, as a

result, wealth."

Miguel de Icaza (Mexico), president of

the open source company Ximian,

"Miguel de Icaza Tells All, " Slashdot, 4

April 2000.

o The regular and often annual upgrading of proprietary software requires users to
also regularly upgrade their hardware to operate that software properly; this is
an additional ongoing expense that is particularly onerous in parts of the world
where many people would like to buy their first computer. A Business Week
magazine computer expert noted in late 2001, "Windows XP [...] will place a lot
more demands on your computer, so millions of people, especially with those
more than two years old, may need new ones." 244

o Proprietary software does not fulfil the requirements for technology transfer, one
of the stated objectives of the 1994 TRIPS Agreement, which among other things
protects computer software as a copyrighted work. 245 A key aspect of technology
transfer is whether the technology is capable of local adaptation; as two
commentators have explained, "in building technological dynamism, what
matters most is not the transfer of technology per se but its adaptation and
assimilation in the local economy." 246 The very nature of proprietary software -
its non-adaptability and, indeed, the unavailability of its source code due to
intellectual property protection - makes it a technology that is not transferred,
but merely licensed for use as is, and it is a licensing process that operates in a
particularly detrimental way for countries in the South.

o Instead of transferring technology, the use of intellectual property protected
proprietary software leads to dependence and over-reliance on imported

242 'Activists Urge Free Open Source Software', Associated Press, 31 January 2005.

243 Tony Roberts, Computeraid International (emphasis added), in Story, CIPR study.

244 Cited in Story ICTSD, p. 21.

245 On technology transfer in TRIPS, see Articles 7, 8 and 66(2).

246 P. Roffe and T. Tesfachew, 'Revisiting the Technology Transfer Debate: Lessons of the new
WTO Working Group', Bridges, Vol. 6, No. 2 (2002).

123

o

technologies. As Ivan Moura Campos, a leading developer of Brazil's Popular PC
project explained several years ago, "we realised that this (lack of access) was not
a First World problem. We are not going to find a Swedish or Swiss company to
solve this for us. We have to do it for ourselves." 247

Unlike proprietary software, free and open source software allows software
developers (and users) to share their technical skills/ knowledge and adapt the
resulting software for local needs. Here are 'testimonials' from two such
developers, one from Mexico and the other from India (see boxes).

Further economic development issues are implicated as well. For example, the
dangers to countries

'I'm a software engineer, a hacker. I write software and when I

wrote my first software I said to myself that this is definitely a

new idea and I don't think anyone else has ever thought of this

before. So I went to my friend and guru, Kiren Sahi, and told

him about my new idea. He said that he had some

disappointing news, which was that the era of new ideas is a

misnomer; you have been born after it. On the planet we have

eight billion people and so if any one of us comes up with a new

idea, then rest assured that because of the statistics, six other

people will be thinking of the exact same idea and at the exact

same time. So I said how do I find the other six? So he said you

must go to Google and I found not just six, but 30,000 people

who shared my new idea and 8.24 lakh free software

developers were working on 78,000 new ideas. So this is the

reason why technical people like me want to place our new

ideas in the public domain. It is because we find collaboration

and partners and consequently we are able to accomplish what

we want to do in a much more rapid manner...'

Sun/7 Abraham (India) is the head ofMahiti and a frontline

exponent of the Open Source movement. Speech at 'IPR and

the Media: Emerging Paradigms' Seminar, Bangalore, 7-8 April

2004. http://www.voicesforall.org/ipr/voices_ipr_workshop.htm

(and their computer
users) relying on
proprietary software is
revealed from a recent
dispute in Korea. The
Korean government's
Fair Trade Commission
was very concerned
about the anti-
competitive effects of
Microsoft's bundling
together its instant
messaging service with
its Windows software
and prepared to launch
a legal case against the
giant US-based
corporation. In response,
Microsoft threatened to
withdraw Windows
entirely from Korea, a
move which, at least in
the short run, would

have had enormous negative economic consequences for the Korean economy. 248
(In the longer run, the Korean government might have appreciated the instability
generated by such a reliance on Microsoft products and commenced building a
new software regime giving a favourable prejudice to non-proprietary software,
as has been done in Brazil.) But the Korean Fair Trade Commission was not
intimidated by Microsoft's bargaining tactics and fined the company $US32
million in December 2005 for its anti-competitive practices. 249

The government and people of Lebanon were also given a lesson, this time
directly by the US government, when some legislators tried to challenge the
powers of proprietary software monopolies. In both 1997 and 1999, there was
vigorous opposition in the Lebanese parliament to draft government legislation

247 See Story, CIPR Study.

248 Dan Milmo, "South Korea fines Microsoft £18M," The Guardian, 8 December 2005.

249 Ibid.

124

on the subject of computer software. A number of Lebanese MPs argued against a
statutory change that would permit, for the first time, software to be protected by
copyright laws. They also said that computer system owners, such as Microsoft,
should be required to grant compulsory software licences to poorer students and
to educational institutions. As a result of pressures applied by Microsoft, Adobe,
and other software multinationals, Lebanon was put on a US Trade
Representatives 'Special 301 Watch List' (meaning that the US government could
decide to impose trade sanctions) for considering such a reform. Lebanon
complied and the bill was passed. 250

Proprietary software creates closed 'operating standards' that are not compatible
with other types of software and uses intellectual property laws to maintain a
near-monopoly for its own proprietary - that is, privately owned and controlled
- standards. Here a comparison with the international postal system is useful. As
is well known, if you live in Country A and want to mail a letter to Country B,
you can buy a stamp and mail your letter in Country A and it will be recognised
by Country B; your letter will be delivered in B without any hassles or
formalities. The postal service in Country B does NOT say, "sorry, but in order to
deliver a letter in our country, you have to use OUR STAMPS." That's because
postal services operate on the basis of open, meaning public and compatible,
standards. National telephone systems use open international standards as well.
Again, can you imagine phoning another country and being told, " sorry, but to
phone a friend in our country you have to use our language." One does not have
to think very long to appreciate the benefits of how much easier computer-to-
computer communications would be if software also operated on the basis of
open and compatible standards.

Large retailers sometimes engage in pricing wars with the principal goal of
driving smaller competitors out of business and, then "having the field" to
themselves, they are able to set even more uncompetitive price levels. Microsoft
also engages in a wide range of questionable pricing and marketing policies to
reinforce their dominating position. Indeed, sometimes Microsoft will give away
its software to governments and users in the South at no cost whatsoever. But
once computer users become familiar solely with systems such as Windows and
Word, switching to alternative systems, such as free and open source software, is
much more difficult. In other words, once they have had their "Windows fix",
computer users will find it difficult to even try an alternative software system. . .
and proprietary licensing charges will carry on annually. In Brazil, Microsoft is
trying to counter the expansion of Linux, the leading open source operating
system, by creating software known as the 'Windows Starter Edition'; this is
basically a low-grade version of Windows. The idea is to use the lower-priced
'Starter Edition', which actually costs more to manufacture, as a way of
leveraging the market, gaining market entry, and challenging Linux.

There is little disputing the fact that levels of so-called software 'piracy' are high
in the South. Although accurate and verifiable statistics are difficult to find, some
unofficial estimates suggest that up to 90 per cent of the software used in
Argentina is pirated. Percentages for China and some other countries are
reportedly even higher. Why such high levels? On the one hand, proprietary

250 See Story, ICTSD, p. 15.

125

software owners sometimes knowingly allow 'piracy' to continue without
challenge or serious enforcement efforts. Why? The 'fix' question comes up again.
Getting potential customers 'hooked' on proprietary software becomes just
another marketing tool; at a later stage when there are many users of the 'pirated'
software, the copyright owner is then in a position to reap the financial benefits
and assert their intellectual property 'rights.' , The experience of the Philippines
is instructive on this point. In the past, the Philippines government was a major
user of 'pirated' Microsoft software. But once Microsoft established a major
presence there, one of its first moves was to negotiate a deal with the Philippines
government under which all of the 'pirate' software was declared 'legal' after the
payment of a small fee to Microsoft. In exchange, the government agreed to
become much more aggressive in the enforcement of copyright; a special
enforcement agency was established, many raids were conducted (with the
assistance of and accompaniment by officials from the Business Software
Association) and criminal prosecutions were conducted in special courts. As one
Philippines activist put it, "every raid means increased sales for Microsoft." And
in fact today, shops in Manila and elsewhere are being pressured to pay a type of
royalty fee to Microsoft per unit of hardware sold because it is presumed that
every personal computer sold has been preloaded with Microsoft products,
'legitimate' or 'pirated'.

o Many parts of the South are badly in need of skilled computer technicians and
indeed hundreds of so-called 'computer academies' have been established.
However, most of these programmes are essentially training shops for the
installation of Microsoft products and do little to spread more widely applicable
and sophisticated computer skills. As two Argentinean computer programmers
have written:

The knowledge content of those programs, however, doesn't go any further
than providing skills in the use of their proprietary software, and contributes
little if anything to the comprehension of the general mechanisms that come
into play. They don't teach the user how to use a word processor, for
instance, but how to use a very specific, proprietary word processing
program. Far from contributing to software literacy, these educational
programs are marketing tools designed to produce users that are dependent
on a particular program. People who attend these courses are typically
unaware even of the existence of alternative solutions, and completely at a
loss when confronted with a different program to solve the same need. 251

In fact, as Heinz concludes, "as a consequence of widespread use of proprietary
software developed abroad, the local market for information technology
professionals is limited to openings for 'computer janitor'." 252

Conclusion

This type of statistical and anecdotal evidence begins to sketch out a picture for the
South in which proprietary software, protected by a combination of patent, copyright
and trade secret laws, does not lead to technological transfer or independence, but

251 Heinz and Heinz cited in Story, CIPR study.

2 52 Heinz cited in Story, CIPR Study.

126

rather reinforces a technological 'lock-in'. Proprietary software dramatically
increases software costs and decreases computer access. And is it any wonder that
there are such high rates of so-called 'pirated' software in many countries of the
South? Nor does proprietary software provide a catalyst for sustained and
substantial economic and social development, but rather leads to further
subordination. ..and daily creates increasingly vociferous and dedicated challenges
to the still dominant proprietary software ethos exported by the North.

4.10 The visually impaired in the South: shut out of reading by
copyright roadblocks

Getting accurate statistics

It is difficult to get accurate figures as to the number of blind, visually-impaired and
print-handicapped persons in the South; such a figure is necessary to quantify, with
any precision, the total number of people negatively affected directly by copyright
restrictions. The whole world suffers indirectly by the unnecessary legal restrictions
on their contribution to our world.

'Official figures' significantly underestimate the situation. According to a December
2004 study by the World Health Organisation (based on the world population in
2002), more than 161 million people were visually impaired; 124 million had low
vision and 37 million were blind. (An earlier estimate by the World Blind Union
suggested that there were more than 180 million blind and partially sighted persons.)
The WHO study concluded that "the burden of visual impairment is not uniformly
distributed through the world; the least developed regions carry the largest share." 253
The developing world (excluding India and China) accounted for 19.4 million of the
37 million, with India and China totalling 6.7 and 6.9 million respectively. Hence,
countries of the South accounted for 33 million of the 37 million blind persons on the
globe. This North-South disparity is likely to increase in coming years as the
percentage of the total population aged 50+, that is, the age bracket most likely to be
blind, is increasing much faster in the South. In this age bracket, there was a 16%
increase in developed countries between 1990 and 2002 compared to 47% in
developing countries (excluding China) over the same period. The study concluded
that "the extent of low vision worldwide is underestimated."

But this quotation minimises the consequences of a key statistical issue. One of the
main reasons for the WHO's underestimation, both for low vision and blind persons,
is that its calculations are based solely on the number of persons who officially
'register' as visually disabled with their own national government. Analysing the
results of a UK survey in the 1980s conducted by the Royal National Institute for the
Blind, Richard Tucker says that study shows that "there were many more people
who really ought to be registered as having low vision but were not." 254 And citing
another study done in the Netherlands with somewhat similar results, he has

253 Global data on visual impairment in the year 2002, World Health Organisation, Bulletin of
the World Health Organisation, November 2004, 82 (11).

254 Richard Tucker (FORCE Foundation, The Netherlands), Vision 2002, 7 th International
Conference on Low Vision, Gothenburg Sweden 21-25 July 2002.

127

estimated that "for every registered person, there are about ten unregistered people
who have difficulty reading [i.e. reading material that can be read by sighted people]
because of a lack of visual acuity." 255 This is the estimate for two rich Northern
countries.

The accuracy of the latest WHO figures is even more questionable in the South. Here
there is less motivation to become 'registered' as blind with one's own national
government because government assistance programs for the blind are much less
extensive. As well, governments often give little encouragement to register because
full acknowledgement of the problem might give a wider lobbying impact to
organisations of and for the blind, nationally and internationally. Additionally in the
South, there is a less extensive communications and government infrastructure. And
finally there is the critical matter of the link or 'confusion' between illiteracy and
blindness; millions of blind people are illiterate primarily because they cannot get
access to accessible reading materials. Here again, say knowledgeable observers,
copyright restrictions are one key barrier to access. As well, there is the shame and
embarrassment of reporting one's own illiteracy. To conclude: the actual number of
blind and low vision persons in the South is dramatically understated.

The basis of the access problems faced by the visually impaired

The severest hindrance to the blind and the visually impaired in accessing
information and knowledge arises from the fact that the original format in which
most books and other published material are printed (or available on the Internet) is
not accessible to them. For such materials to be usable by them, they must be
converted into an accessible format; such a format could be large print (especially
important for those with low vision), or audio (e.g. an audio tape or CD of a book), or
in braille, or in various computer-assisted formats, such as synthetic speech or on
enlarged screen displays (e.g. by altering features such as colour or font.)

But, and here is the key legal issue: in order to convert a copyright-protected work to
a different format (or font size) from the original work, it must be copied (or
typographically altered). Copying a work (meaning, in legal language, "reproducing
the work in any material form" 256 ) without the permission of the owner is copyright
infringement; it is a breach of statutory duty and case law. Copyright doctrine
dictates that copying a work is the exclusive right of the copyright owner.
Alternatively, a work could be read aloud - this is called "performing a work" - and
recorded, but, again, the owner is given the exclusive right to perform a work. The
legal straight-jacket is a tight and unbending one.

Some minor reforms, which do allow (in narrowly drawn situations) the 'copying' of
the original work to make a single copy - without the prior permission of the
copyright owner - have been won in countries of the North, such as the US, Canada,
the UK, some Scandinavian countries, and New Zealand. This is undertaken by the
conversion of copyrighted hard copy or digital works to accessible formats.
(Previously it had been illegal, for example in the UK, to make even one accessible

255 Op cit. ( italics added)

256 gee, for example, Section 17.2 of the United Kingdom's Copyright, Designs and Patents Act
1988. This approach mirrors that found in other national copyright legislation, including in
the South.

128

copy without receiving permission from the rightsholder.) But David Mann, a
copyright and access specialist with the World Blind Union, says he does not know
of a single country in the South which has implemented even this narrow exception.

The problem is further exacerbated because such a small percentage of material in
accessible formats is available in the normal marketplace for blind persons; what we
could call 'self -conversion' (or non-market conversion) is often the only route to
access. To cite another UK example, the World Blind Union has estimated that "only
around 5% of published titles ever become available in accessible formats and it is
rare indeed for the accessible version to come out until months or years after the
original." 257 More recent research conducted by the Royal National Institute for the
Blind in the UK shows that the proportion of books available in accessible formats in
the UK is even less today than it was five years ago. It is fair to say, conclude
spokespersons for blind rights organisations, that an even smaller percentage of
accessible works is available in countries of the South; moreover, accessible works
produced in rich countries often cannot be exported to the South because of
copyright restrictions as is discussed below.

The access problems in the South created by copyright

For blind and partially-sighted persons in the South (and in the North as well), there
are a wide range of pressing access issues. Although copyright laws are often not the
only source of the access problem for the visually impaired and wider economic
disparities should not be forgotten, rights owners and their representatives
continually raise presumptions derived from copyright laws and its accompanying
ideology to block needed access... and render access either unnecessarily
complicated or often impossible.

Among the practical consequences of the current copyright regime for Southern
countries, the following should be noted:

a) Copyright licensing restrictions do not allow materials that have been converted,
with permission, into accessible formats in one country to be exported to another.
For example, the Royal National Institute for the Blind in the UK has reached a
licensing agreement with a few UK publishers under which the RNIB has been
permitted, usually upon payment of a licensing fee, to convert a limited number
of standard university textbooks into accessible formats. However, students in
the South (for example, the 90 blind English-speaking students who enter
university and colleges each year in Ghana) are not able to get access to these
converted materials because of the copyright restrictions found in the RNIB
licence. Instead (and given that accessible materials are so limited across the
South) these Ghanaian students are often required to employ sighted person to
act as readers for their studies. This is hardly an ideal learning situation; it is also
expensive for such blind students and often prolongs their studies for many
years, says Chris Friend, an official with Sight Savers International, which does
work in this region.

b) In fact, the most serious problem for countries of the South (and for organisations
of and for the blind) seeking to provide access to the blind is that they must

257 Presentation by the World Blind Union to the Standing Committee on Copyright and
Related Rights, the World Intellectual Property Organisation, 3 November 2003.

129

duplicate, in nearly every instance, the conversion process completed elsewhere
on the very same materials. Converting books to Braille or other formats is an
expensive process, yet, because of copyright and related licensing restrictions, the
very same book must be converted again and again by organisations located in
different countries. "It is a huge waste of resources, especially so when resources
for access by the blind are already so limited in developing countries," says
Richard Tucker of the Force Foundation, a Dutch-headquartered organisation
that assists in the production of accessible materials for the visually impaired
across the South. Although it is difficult to give precise figures on the costs of
conversion, Tucker says that the cost of converting a book to an accessible format
operates on about a 1 to 5 ratio (per page). This means that a 'regular' book
retailing for US $20.00 will cost about US$100.00 to produce in an accessible
format. Most of the per-page cost comes from producing the master and such a
cost assumes, to take one of several factors, that the converting producer is using
automatic page-turning equipment. Such equipment is not found in the South.
Using manual page turning equipment, which is also rarely found in Southern
countries, escalates the cost ten-fold. In other words, this same US$20.00 book
would now cost US$200.00 to convert. Certainly labour costs are much lower in
the South, but "a very large percentage of the budget [of organisations in the
South producing accessible books] is taken up in producing Braille and large
print books," says Tucker. Yet, the very same books have often already been
converted in the North and could be transmitted to the South in digital format,
either through e-mail or by regular post. But the restrictions of copyright law
prevent this occurring. "It should be possible for accessible materials created
under an exception in one jurisdiction to be imported for the benefit of blind or
partially sighted people in another", 258 states the World Blind Union in an
implicit critique of the single jurisdiction-based limits on users' rights. We believe
it is difficult to disagree,
c) A related problem occurs between even adjoining countries in the South. If a
blind rights organisation in one country in the South, for example Ghana,
negotiates an agreement to convert materials in one country and expends
significant funds to produce such an accessible work, that same work cannot be
used in another African country. Instead, organisations of the blind in other
African countries must not only negotiate a separate agreement, but also produce
their own Braille or audio version. Again, this is extremely wasteful of already
limited resources.

The partial nature of reforms in rich developed countries

In past decades, organisations of the blind in rich countries, such as those in the UK
and the USA, have been able to lobby successfully for very limited copyright
exceptions for the production in an accessible format of single copies. Since 2003,
unlike before, users in the UK have no longer been required to get the written
permission by a rights owner to convert a single copy. 259 The UK's Copyright (Visually
Impaired Persons) Act 2002, which came into force on 31 October 2003, is an example
of the type of legislation that some people are advocating should also be adopted by
Southern countries. To produce a single accessible copy, this UK Act removed the

258 World Blind Union, An Advice Note- Exceptions or Limitations to Copyright for Blind,
Partially Sighted or other Print Disabled People, 30 June 2004. The author is David Mann.

259 As noted above, even these limited reforms are confined to the North.

130

need for prior permission by the copyright owner. This was a small step forward. But
many access restrictions remain. Accessible materials which are commercially
available, often at high prices for blind purchasers, cannot be copied and, as Kevin
Garrett notes, "there is no requirement [in the Act] that the commercially-available
copies should be available at a cost which is either reasonable or one which the
visually impaired person can afford." 260 Data bases cannot legally be converted. The
master copy cannot be used by an individual to make a second copy and a visually-
impaired person must retain the master copy or, strangely, that person would be
considered as being in the possession of an infringing copy... and thus breaking the
law. The making of multiple copies is possible in certain limited circumstances, but
the process is highly constricted. Overall, this statute is "convoluted" with "ill-
drafted provisions" that are "onerous" and which "do not seem to be required by the
[highly restrictive] Berne [Convention] three step test ..." 261 It is an orientation and a
set of restrictions that should not be exported to the South.

The numerous time and money problems that arise in both getting permission to
create an accessible version of a work and actually carrying out the production of
accessible materials are an additional access issue. The set of hurdles is similar, in
one sense, to those faced by sighted persons, such as students, and their teachers. For
example, publishers (i.e. copyright owners) in the North and South create as many
administrative burdens and financial roadblocks as possible - and greatly increase
the transaction costs - for the production by teachers of course packs required for
their students and, indeed, they actively discourage the process. 262 Rights holders
would much prefer teachers to assign publishers' books (that is, their own books) to
students as the profit margins are much higher for them. But for the blind and
visually impaired, this 'discouragement' becomes a complete roadblock as very few
accessible texts are even produced, let alone sold. Denise Nicholson, a South African
specialist in copyright matters related to access to educational materials, highlights
the problem in her country:

Someone who is partially-sighted may be able to enlarge a 'fair and
reasonable' portion of a work in a photocopied format, in terms of 'fair
dealing' for his/her own personal use, but if they need to convert the [whole]
work [which is the more obvious and pressing need as access to and the use of
mere short passages permitted by fair dealing are seldom sufficient for
learning purposes] into a more accessible format, e.g. Braille; a digitized
format, audiotape, etc., they cannot do so, without first getting permission
from the publisher. Unfortunately, getting copyright clearance can take
several months. When a blind learner needs his/her educational and study
material immediately for his course, test, etc. this is a great hindrance. Where
sighted learners would be able to get on and do their work, the visually-
impaired learner would be disadvantaged, as he/she would have to wait for
permission and if granted, wait for someone to convert the material to an
accessible format. 263

260 Kevin Garnett, 'The Copyright (Visually Impaired Persons) Act 2000', European
Intellectual Property Review 2003, 25(11), 522, 524.

261 Garnett, 526-527.

262 See materials on the website of the (UK) Copyright in Higher Education Workgroup
(CHEW); accessible at http://www.ukcle.ac.uk/copyright/index.html

263 Denise Nicholson, 'Does copyright have any significance in the lives of illiterate or
visually-impaired persons, WIPOUT contest essay, 2001. Accessible at:

131

Making multiple copies needed for teaching purposes in accessible formats is even
more difficult. There is no provision in South African copyright law to address and
overcome any of these problems, Nicholson concludes. And the situation is even
more desperate in poorer countries in the South than South Africa.

The copyright prohibitions against translations are a further barrier. It is already
difficult enough to undertake technical conversions for the visually impaired and to
make them internationally available to persons understanding the same language.
Because the translation (of copyrighted works) from another language cannot be
done without permission, 264 the production of accessible translated works (either by
converting existing hard copy translations or by doing 'new' translations for
conversions) is, again, all but impossible.

In the few countries that allow exceptions in their copyright statutes (and none,
seemingly, are in the South), only particular organisations of and for the blind within
that same country have been designated as the sole beneficiaries of these exceptions.
This means that other organisations within that country cannot take advantage of
this exception and thus cannot produce materials. More significantly, this practice
does not allow any organisations producing accessible materials to share their
materials with the blind in other countries, including the South.

Copyright can also be a problem for the blind and the deaf in accessing materials that
are already in the public domain- at least for sighted people. (In the case of the deaf,
digital rights management schemes used for E-books block the use of text-to-speech
software. Moreover, conversion from one format to the other has to be cleared first;
any modifications, e.g. to make information more visual for deaf persons or to
convert from one format to another for better access, has to be cleared before they can
be used. ) The World Blind Union's Manifesto for a United Nations Convention on
the Rights of People with Disabilities of 2003 states, under Section 5.4, that the 'Right
to information and Communication' includes: "The right to the provision, in a timely
manner and without additional cost, of all information in the public domain in
formats that are accessible to blind and partially sighted people, such as Braille,
audio, large print and electronic text, regardless of any copyright laws. This is to
include all correspondence and information from public services, such as hospitals,
public utilities and government departments, as well as those providing an essential
service such as banks." 265

A concluding note

Prominent copyright scholars have written that copyright laws seek "to encourage
the widest possible production and dissemination of literary, musical, and artistic
works." 266 From this it follows that for this dissemination to be meaningful it must be
accessible. "If an author [more accurately, the copyright owner] seeks to benefit by
commercializing a work, then the public should be able to benefit by having access to

https: / / www.kent.ac.uk/law/undergraduate/modules/ip/resources/WIPEOUT.htm

264 p or more on translation and copyright, see Section 4.11

265 WBU Manifesto, at http://www.euroblind.org/fichiersGB/wbumanif.htm ( italics added)

266 p au j Goldstein, Copyright, Section 1.1, cited in Robert A. Kreiss, Accessibility and
Commercialization in Copyright Theory, 43 UCLA Law Review 1 (1995), note 1.

132

the work. If access is denied to the public for a work where the author [owner] is
receiving the economic benefits made available by the copyright system, then the
goals of copyright are not being served." 267 Blind persons, nationally and globally,
are certainly members of 'the public', yet they cannot get access to most materials
that are copyright protected - or, more appropriately copyright restricted - by their
own national laws and the international ideology of copyright. And conversion of
such materials into accessible formats does not entail any loss of revenues for copyright
owners. Finally, computer technology (e.g. scanners, the Daisy system) has
dramatically increased the ease and decreased the cost of converting printed
materials into accessible formats for the blind and the visually-impaired. Taking the
fullest possible advantage of these technological advances is, however, repeatedly
stymied, in both the North and the South, by copyright restrictions. A central
problem: On the one hand, rights holders are automatically given legally-enforceable
rights and protections on a world-wide basis (e.g. through the 'national treatment'
provisions of the Berne Convention explained in Section 2.7), but, on the other hand,
users' rights, however limited, are restricted to single national jurisdictions and
cannot be shared by other blind people in the other countries. In short, property
rights trump the user rights of the visually impaired.

4.11 How copyright presumptions trump translation possibilities
and limit the sharing of knowledge

Translating written texts from one language to another - or to a number of other
languages - is one of the most beneficial and simplest ways to share knowledge and
for readers to learn about and learn from other cultures and other peoples. Copyright
laws, however, become an important restriction on such translation possibilities. 268

The essential legal barriers to translations of copyrighted work into other languages
are the following: Under the traditional presumptions of copyright law, the first
author of a work is given the 'exclusive right' to 'adapt' a work; the adaptation of a
work includes the 'translation of a work' into another language. 269 As publishers,
rather than authors, own copyright in works, the publisher 'steps into the shoes' of
the author and is given the legal power to authorise - usually for a fee - the
translation of a work. Or the rights holder can refuse permission. This approach,
found in most domestic copyright laws across the globe, mirrors what is stated in
Article 8 of the Berne Convention. 270 This legal power to prevent translation lasts for
as long as the work is protected by copyright.

267 Kreiss, op. cit. p. 4. It is true that unpublished (and hence inaccessible ) works also receive
copyright protection, but the owner does not receive economic benefits from such works,
unlike the owners of published materials who choose, primarily for economic reasons, not be
make such works accessible to the visually impaired.

268 On the small number of books that are translated into Arabic each year for the Arab
market, see Section 3.4

269 p or me United Kingdom, see Copyright, Designs and Patents Act 1988, Art. 16 (1) (e) and
Art. 21

(3), (I)-

270 On the Berne Convention, see Glossary.

133

The lengthy copyright term and the difficulties in making translations reinforce each
other as access barriers. Significantly, even though an author may often assign (sell
or give away without payment) copyright in his/her work to a publisher and will no
longer have any economic rights in the work, the duration of copyright held by a
publisher will be determined solely with reference to the date that the author dies.
Only after copyright has expired, which may be more than 100 years after a book or
article is first published, can it be translated into other languages without getting the
permission of the owner of the work (in the first language). Furthermore, the
translator of a work into a second language may also gain 'new' copyright in the
translation he or she has done. As well, each translation into each specified language
usually requires individual permission; sometimes permissions into more than one
language are granted jointly. Moreover, sometimes the content of the actual
translation must be approved, prior to publication, by the rights holder of the first
work. And, finally, in some jurisdictions (though not all), the author of the original
work can object to the content of the translation on 'moral rights' grounds, that is, the
translation is considered as so poor, in the opinion of the original author, that it
amounts to a 'derogatory treatment.' 271

All of these legal rules and restrictions can block or delay translation into another
language for decades and decades and is highly dependent on when an author dies
and into what languages a book or article is translated. Each new translation begins a
new copyright cycle. For example, if a book A written in language X (for example, an
uncommon or local language) is translated into language Y (a more common
language), book A might not be able to be translated into language Z from the copy
available in language Y until more than 150 years after book A was first printed.

The 1971 Appendix to the Berne Convention does make some very marginal changes
for developing countries though, interestingly, a country such as South Africa is not
designated as a 'developing country' under the provisions of the Berne Convention.
However, arranging such translations under the Berne Appendix creates high
transaction costs for publishers in the South, and there are numerous delays and
restrictions that remain. The Berne Appendix is, not surprisingly, seldom used.

The privileging of European languages

The translation problem is particularly pronounced in the South, especially in Asia
and Africa where many countries are multi-lingual. This situation is in contrast to
that found in most countries of the North where one or two languages are typically
spoken by the majority of people within a given country. This significant difference
is an important one. Within Northern countries, translation into another language
often means translation into a non-domestic language, that is, into a language spoken
by people living in another country. This is somewhat similar to the situation that
prevailed in 1886 when the French author Victor Hugo headed the movement to
establish the Berne Convention; the French took a very 'hard line' on the translation
question, while other nations, such as the Scandinavians who were users, wanted a
more relaxed approach. Yet, the 1886 assumptions about translation still hold sway
globally and are found both in the Berne Convention and national copyright
legislation. But such assumptions simply don't hold true in the South. A wide range

271 On moral rights, see Glossary.

134

of languages are spoken and written in India and a significant number of African
countries, for example, have more than ten languages. And in the production of
materials across Africa, "local languages are ignored in favour of English, French or
Portuguese" as Colin Darch has written. 272 There are also few translations of works
from one African language into another (e.g., from Bantu group languages of
southern and eastern Africa into Igbo, Yoruba or Hausa from Nigeria, or vice versa).
Generally the right to make a translation must be individually acquired for each
translation into a different language; it may be difficult, for example, to acquire the
translation rights for all of the languages used in Nigeria or South Africa. The latter
has some 200 languages and 11 official languages. In fact, a third of the world's
languages are spoken in Africa and so it is not hard to imagine the problems trying
to get works translated for educational purposes.

The overall situation reinforces the inequality of languages, privileges European
languages, and means that tens of millions of Africans and Asians are unable to get
access to or read books and articles originally published in languages other than their
own, even languages used within their own national borders.

Translation restrictions mirror other restrictions

The legal barriers established for translations reveal and mirror many of the basic
restrictive features of copyright: a) the original work becomes the exclusive preserve
of the owner (who is often not the actual author) ; b) the work is propertised
(meaning the subject of exclusive use like other commodities) for a very lengthy
period of time; and c) there is no positive requirement or obligation to share or
spread the knowledge to others, even if in this case, no negative consequences (e.g.
the loss of a market) will result from the sale and distribution of a book that has not
been translated into a local or national language. And in the case of translation, the
'others' at stake are those who read materials originally written in another language.

Lacking any obligation to share, the owner of the initial copyrighted work can simply
sit back and wait with all of the 'trump cards'. On the one hand, some day in the
future the owner may want to have the work translated into another language and so
he/she has no desire to create potential competition for a potential translation, which
might bring in a fee. In other words, why share it today? On the other hand, those in
the South (and sometimes in countries in the North who read another language) will
often not have sufficient funds to pay the additional fees demanded by the publisher
of the work for translation purposes. Southern publishers trying to acquire
translation rights often face an unequal bargaining power situation (compared to
large Northern publishers ) and may be trying to serve a small market composed of
one language grouping; they can be regarded simply as a low-rent nuisance for the
publishers of English, Spanish or French publications. As one African publisher
explained, acquiring translation rights from European publishers is a highly
complicated process and "in the few exceptional circumstances where European
publishers grant rights to their African counterparts, this is usually done on harsh

272 C. Darch 'The 'Alexandrian' Library, Digital Resources, and the Shrinking Public Domain:
the Current Model for Delivering Academic Information in Africa' (Paper presented to the
LIASA Conference on 'African Renaissance through Libraries', Pretoria, 24-28 September
2001)

135

and unfavourable terms." 273 In the end, cross-cultural and cross-language barriers to
communication and understanding and learning from others who happen to speak and
write in another language remain in place.

At the same time, it needs to be recognised that copyright restrictions are only one
roadblock to the sharing of literature and other written texts among the people of the
world. Cultural isolation and a sense of cultural superiority also play a role. A prize-
winning US translator, John E. Woods, has examined a list containing the number of
'serious' books of literature ( in other words, cookbooks and tour guides and the like
are excluded ) that are available in English in the US, the world's largest book
market, as translations from other languages. The annual list of books seeking to win
the annual PEN translation prize, which Woods suggests covers "most of the serious
prose and poetry that gets published in a given year" and which are translated into
English, does not exceed 200 to 250 titles a year. As a result, he continues, "every year
we Americans are getting no more than about 200 peeks a year over the literary fence
into the outside world. Then, if you start looking at the individual languages, about
60 per cent are translated from five languages, and in this order: French, Spanish,
German, Russian, Italian. So that's about 120 titles. All of the rest of the world's
languages get the other 80. " 274

4.12 Three legal questions related to access

As this section of the dossier has already detailed, domestic copyright laws and
international copyright conventions erect a wide range of restrictions that severely
limit the use of copyrighted work across the globe. 'Keep out' signs are erected
everywhere. The owner of the copyrighted work is given a legally-recognised
property right over the work, whether a book, a film, an artistic work, a television
broadcast or a myriad of other types of literary, musical and artistic expressions. But
such property rights are not absolute or total. If they were, a student writing an
essay could, for example, not quote a single sentence from a copyrighted book in
her or his essay without the prior permission of the owner of the copyright. In other
words, establishing absolute rights to exclude all uses would be an absurdity.

Users do possess certain narrowly-drawn rights to use copyrighted works. Legally,
such access and use rights are called 'limitations and exceptions' to copyright; the
highly questionable assumption behind such terminology is that copyright and its
many restrictions are the 'normal' and 'natural' - and preferred - state of affairs and
that the right of the public to freely use such works is an aberration that needs to be
strictly controlled. In any event, there are three legal questions that need further
analysis in looking at access questions in the South: one involves an exception, a
second is concerned with a legal agreement created especially for developing
countries more than 30 years ago, and the third is a 'test' for whether a use is
permitted. These are respectively: a) fair use/ fair dealing; b) the 1971 Appendix to
the Berne Convention; 3) the Berne Convention ' three-step' test. Here we provide
solely a brief treatment that covers only the high points (and low points) of what are
quite complicated legal questions. What is notable is how each of these provisions

273 See Story, CIPR Study, p. 49

274 John E. Woods, San Diego Weekly Reader, no. 32 (August 14, 1997), 20-22.

136

has been given far more importance than it deserves as a method and/ or tactic for
overcoming the access and use requirements for peoples of the South.

a) The question of fair use/ fair dealing

'Fair use' is an important part of US copyright doctrine (and also used in the
copyright laws in the Philippines) that allows a user to legally access and use limited
sections of copyrighted works without the permission of the copyright owner and
sometimes without the payment of any fees. In most other parts of the world, that is,
almost every country except the United States and the Philippines, this right is
labelled 'fair dealing.' ('Fair use' and 'fair dealing' do not, in practice, operate in
exactly the same fashion ; the statutes and case law that deal with 'fair dealing' are,
in general, not as sympathetic to users' rights as those covering 'fair use.' 275 ) The
absolute ownership rights of the owner are said to be overridden by other interests,
such as the public interest in making works much more widely available. It is the
'fair use'/ 'fair dealing' exception, for example, that permits a student to quote
passages from a copyrighted work in her or his essay without getting permission
from the owner. If a use falls within such guidelines, which are not clear-cut and can
depend on, for example, why the copyrighted work is being used and how much is
being used, the user may be provided with a good defence if the owner decides to
launch a copyright infringement action.

What is the situation in countries of the South regarding 'fair use' and 'fair dealing'
provisions? There is no single pattern. While some countries do have 'fair dealing'
provisions that are basically similar to those in the developed world, a number of
countries do not have any statutory provisions that expressly permit 'fair dealing' (or
'fair use.') The reason? Until quite recently, the copyright statutes in numbers of
countries across Africa and Asia were essentially colonial transplants drafted by
Europeans or their colonial underlings. Such statutes were often carbon copies of
those that existed in the homeland of their then (or previous) colonial master,
whether England or France or Spain. If such statutes supposedly 'worked' in
England, then they were considered equally valid in countries such as Kenya, even
though the conditions were radically different. Yet, in some African and Asian
statutes, the 'fair dealing' clauses were, curiously, omitted. (Or perhaps not so
curiously, as 'fair dealing' would at least have given some minimal rights to users
when accessing works which, in most cases, would have been owned by publishers
and other companies based in Europe.) Significantly, the leading global copyright
agreement, the Berne Convention, does not require that members draft domestic
copyright laws which mandate 'fair dealing' (or 'fair use') provisions. In an era when
the call to 'harmonise copyright laws' is growing increasingly shrill and when the
rights of owners are becoming strengthened, protected, enforced -and more and
more harmonised - through international agreements such as the WIPO Copyright
Treaty 1996, the call for 'harmonising users' rights' across the globe is seldom heard,
let alone acted upon.

So a call for the creation of 'fair dealing' (or 'fair use') laws in every country in the
world is certainly a demand worth supporting. And the best or broadest users' rights
established anywhere in the world should become the global harmonised standard.

275 To read more on the concepts of 'fair use' and 'fair dealing', see http://en.wikipedia.org

137

Such provisions are particularly needed in the South where libraries are generally
funded at much lower levels, where access to printed works is more tenuous and
where the needs are especially pressing. Yet, at the same time - and this point cannot
be made strongly enough - the transplanting of Northern 'fair dealing' (or 'fair use')
laws and standards to the South is not the essential or principle solution to the
information and knowledge needs, especially technical knowledge needs, of
countries of the South and both their students and their teachers.

Organisations which advocate the transplanting of US 'fair use' standards as the
main access solution simply do not appreciate the 'on the ground' situation in the
South. Looking across the full spectrum of the education field provides numerous
instances of where a 'fair dealing' /'fair use' approach simply does not fit the bill.
Four brief examples should suffice here:

First, the amount of
material that can be used
legally (that is, using the
'fair use' exemptions) from
any given copyrighted
book or article is pitifully
small. A person trying to
learn to read on a literacy
programme in the South
cannot learn to read if she
or he can only have access
to the odd sentence or a
couple of paragraphs; this
is the amount which
typically is allowed at no
charge under a 'fair use'/
'fair dealing' standard.
Rather, they need access at
no charge to complete
books, many books, and
other materials; 'fair
dealing'/ 'fair use'
approaches forbid this.
How can this be 'fair' to
persons who are illiterate?

"I've spent the past several years trying to negotiate with

publishers for uses. We also have access to fair dealing,

under the usual terms, 'a reasonable portion', 'no impact

on commercial use.' But no one knows what this means

and no one knows what's reasonable. Only the courts

know and litigation is too expensive. One technical

question on labour law that we litigated cost us 5,000,000

Rand. As educational sector, we don't have the kind of

money needed to challenge the publishers. (We) need (an)

interpretation of (the) legislation. Publishers say they have

taken a reasonable position. They have no problem with

individual students and teachers making copies. But when

an institution makes copies, even of a single page, they

must pay royalties. For instance, English literature

professor making copies of a single poem from an

anthology of 600 of them. There is no fair dealing from the

standpoint of administrative teaching."

Professor Mien Hofman, Commonwealth of Learning,

Department of Commercial Law, University of Cape Town,

Cape Town, South Africa. Speaker, Information Meeting on

Educational Content and Copyright in the Digital Age,

World Intellectual Property Organization, Geneva,

Switzerland. 21 November 2005

http://www.eff.org/deeplinks/archives/0041 93.php#0041 93

Second, 'fair dealing'/ 'fair use' statutes typically only permit use of copyrighted
material for individual "research" and "private study." 276 Such laws typically do
not cover the provision of course and study packs in schools, even though each
student receiving such a course pack will, in most cases, be engaged in "private
study" when she or he is reading and using the pack. Again, 'fair use' is of no
value.

276 p or (-j^g restrictions in the United Kingdom, see the UK Copyright, Designs and Patent Act,
1988, Sec. 29.

138

o Third, as we saw above in the case of the Colombian academic, 277 the 'fair
dealing' /'fair use' approach may allow an academic in the South to quote a few
passages from copyrighted works in their own research. But this orientation
creates all sorts of hurdles to accessing many printed materials in the first place.

o Fourth, as Professor Julien Hoffman of South Africa explains above, 'fair
dealing'/'fair use' standards are very difficult to understand; not every primary
school teacher is a copyright expert and every use that exceeds such 'fair
dealing'/ 'fair use' limits means that copyright royalties must be paid to
publishers. If some university students in rich countries such as the United States
and Britain justifiably complain about the costs of their educational materials
(costs that are principally, though not exclusively, the result of copyright
restrictions), the complaints of students from countries such as Mexico, Malawi
or the Philippines are even more valid.

In other words, importing Northern 'fair dealing'/ 'fair use' standards to the South is
simply not 'fair.'

b) The Appendix to the Berne Convention

The Berne Convention is the leading international agreement that governs copyright
relations between countries as well as dictating a number of requirements that must
be inserted into the domestic copyright statutes of all member states. First drafted in
1886 and amended, mostly in minor and technical ways, a number of times since
then, the Berne Convention is an agreement or treaty that was written by developed
countries and represents the approaches to copyright law that predominate in these
countries. As more and more colonies and dependent countries in the South gained
their independence in the 1950' s and 1960s, the failings, indeed the oppressiveness,
of the Berne Convention became more and more obvious to countries of the South. It
simply did not meet or contribute to their nation-building requirements.

A Southern-led revolt in the 1960s against the presumptions and ideology of the
Berne Convention created what some commentators called an "international crisis of
copyright." The wider reasons for this important revolt, its background, and its
demands are detailed elsewhere in the dossier; 278 here in this section on access
questions, we will do a brief analysis of the single international agreement that
resulted from this crisis, namely the 1971 Appendix to the Berne Convention. (This
Appendix, which is part of Article 21 of the Berne Convention, is now included in the
1994 TRIPS Agreement under Article 9.) Although the Berne Appendix is labelled as
a set of "special provisions regarding developing countries," it is, in reality, a
distraction from the real struggle to win better access rights for the South; it is a mere
table scrap, a tactical cul de sac, a legal nightmare. The 'special' situation found
across many parts of the South is not addressed and, not surprisingly, its provisions
have seldom been used by countries of the South in the 35 years since it came into
existence. A leading commentator on the Berne Convention, Professor Sam Ricketson
of Australia - and someone who is hardly a radical copyright activist - has

277 See Section 4.7

278p or more on thi s period of conflict, see 'The late 1950s and 1960s: the Southern revolt

against copyright' in Section 5.2 of the dossier.

139

concluded that the Appendix has brought "no obvious benefits" to developing
countries.

The essential purpose of the Appendix was to make it easier for publishers in the
South to get authorisation to publish materials already published in the more
developed North. For example, translation of works by Southern publishers for
teaching and research purposes is made somewhat easier to undertake if a Northern
publisher decides not to have their works (originally published in European
languages such as French or English) translated into the languages found across
Africa and Asia. But, not only do few publishers in the South even know about the
1971 Appendix 279 , the Appendix reinforces the idea that Southern publishers should
be the one (and only) conduit for the reprographic copying and the production of
materials and their delivery in the South. (Of course, many Northern-based
publishing giants, such as Oxford University Press and Reid-Elsevier, also have a
significant market share of the Southern textbook market.) In the case of education,
for example, the Appendix gives no additional rights whatsoever to teachers who may
want to independently access and distribute materials for the use of their students
with the assistance of two of the more common communication tools: a) a
photocopier or low-priced duplicator or offset press; b) a computer and the Internet.
So not only is the Appendix a technological anachronism which reinforces the
privileged, in fact exclusive, position of publishers, Northern and Southern, in
deciding upon the use of information and knowledge. It does nothing to alleviate
other pressing access issues documented earlier in this section of the dossier, such as
the use of the fields of distance learning, in libraries, or in research. For the South, it
is a fatally flawed copyright agreement.

c) The Berne Convention Three-Step' Test

One of the current and ongoing controversies about the Berne Convention (and
international copyright law more generally) involves the question of real (and
potential) limitations and exceptions to copyright that might, for example, allow
much freer use of copyrighted works. The Berne Convention 'three-step test'
determines whether such exceptions will be permitted; in other words, it establishes
in what circumstances the exclusive rights granted by law to rights holders under
national copyright laws might be constrained and over-ridden by competing
interests, such as the right to education. 280

The test, similar to that used in copyright questions, is included in Article 13 of the
TRIPS agreement. It reads:

279 In an interview conducted in 2001, the Ghanaian president of the African Publishers
Council said he had only learned recently of the existence of the Appendix. See Story, CIPR
Study, pg. 51.

280 -phe 'three step' test was first applied to the exclusive right of reproduction by Article 9(2)
of the Berne Convention for the Protection of Literary and Artistic Works in 1967. Since then,
it has been transplanted and extended into the Article 13 of the TRIPs Agreement, Article 10
of the 1996 WIPO Copyright Treaty, and Article 16 of the 1996 WIPO Performances and
Phonograms Treaty.

For more on the "three-step test", see http://en.wikipedia.org/wiki/Berne_three-step_test.

140

Members shall confine limitations and exceptions to exclusive rights to
certain special cases which do not conflict with a normal exploitation of the
work and do not unreasonably prejudice the legitimate interests of the rights
holder.

To date, there has been only one case before a World Trade Organisation dispute
settlement panel that can help to give us a better idea of exactly what these words
mean in practice and whether the 'three step' might be a legal way to pry open
existing access and use restrictions. 281 We do know that the test applies cumulatively;
in other words, for a particular limitation to be permitted, all three prongs of the test
must be satisfied. We also know that the 'three-step' test may become an important
site of future conflict. If any nation attempts to reduce the scope of its own domestic
copyright law by using this test, such states are likely to face severe legal pressures if
the World Trade Organisation does not also agree that such domestic modifications
comply with the test.

More generally we need to ask: is the Berne 'three-step' test - on its own terms - a
valuable and viable test to use for establishing copyright exemptions if we wish far
greater access possibilities? Might it, for example, be a legal tool that could be of use
in a situation highlighted earlier in the dossier, namely the more than 200 million
blind and visually-impaired people in the world who can't access printed materials,
in part because of the exclusive reproduction rights given to copyright owners which
prevent the unauthorised changing/converting of formats? There is no hint to date
that the 'three-step' test would regard their access needs as 'special' - in fact, the
reverse is true - and hence they would be required to act 'normally'; in other words,
they could not change formats to make such books accessible for themselves. In the
same vein, there is not a hint that the pressing need to get cheap access to books for a
literacy programme in the South would, under the 'three-step' test, be able to trump
other 'rights', namely, the property rights of publishers, normal money-making
practices, 'the right' of collecting societies to collect revenues. And so this test
provides not a single step, let alone three, along the road to better access.

4.13 Copyright and cultural domination by the North: a long-
standing conflict that is getting sharper

It was not particularly shocking when a newspaper reported in December 2005 that
the United States government had established "a (US) $300 million Pentagon
psychological warfare operation" which "includes plans for placing pro-American
messages in foreign media outlets without disclosing the U.S. government as the
source." 282 The details of this expensive campaign, which has included ghost-written
articles, advertisements, radio spots, television programmes, and what are labelled
'public service announcements', were first exposed on the eve of elections in Iraq; it
is a campaign that is being taken up as part of US President George Bush's high-
profile 'war on terror'.

281 The case involved US copyright exemptions allowing restaurants, bars, and shops to play
radio and TV broadcasts without paying licensing fees; the exemption was included as a rider
to the 1998 Sonny Bono Copyright Term Extension Act.

282 Matt Kelley/ Pentagon rolls out stealth PR', USA Today, 13 December 2005.

141

Such news is hardly surprising because the United States has been spreading its
dominant ideology and world-view to the countries of the South for decades, indeed
for more than a century. It is, of course, not the first or the only imperial power to
believe in its own 'civilizing mission' ; the British considered they had the same duty
in the 'glory days' of their own empire upon which, they repeatedly bragged, 'the
sun never set.' (The French, the Spanish and other European powers also operated
across their own colonial terrains in many similar - and some dissimilar - ways.)
And the rationale for the current 'civilising mission'? To maintain its dominant
position in this era of globalisation, United States must do more than simply profit
from the strongest and most rapacious economy in the world or operate military and
naval bases in 130 countries. Information domination is required as well. As an
official in the former Clinton administration explained "... for the United States, a
central objective of an Information Age foreign policy must be to win the battle of the
world's information flows, dominating the airwaves as Great Britain once ruled the
seas." 283

Commentators have explained how, on the US 'home front', these information flows
have been essential in shaping the political, social and economic attitudes of the
American people. Those "who are not permanent residents of the West on a day-to-
day basis are always struck by the incredible saturation by the dominant media - a
virtual carpet bombing of the public consciousness." 284 In the age of the Internet, this
'carpet bombing' has gone digital - and international- and the South is more and
more directly in the drop zone for the US-based information/ ideology offensive.

Here is how a leading US newspaper described the situation a decade ago in one
edition devoted to the theme 'How the World Sees Us':

The crumbling of the Berlin Wall in 1989 marked the beginning of America's
ascendancy to a new level of world domination. No traveller can miss the
evidence abroad. In music, television and the movies, America's influence is
approaching what advertising people call 'market saturation.' The emblems of
American mass culture have infiltrated the remotest outposts: the Coca-Cola
is on the street corners from Kazakhstan to Bora-Bora; CNN emanates from
television sets in more than 200 countries; there are more 7-Eleven stores in
Japan than in the United States. Our technology - computerized weapon
systems, medical scanners, the Internet - sets the standard to which
developing countries aspire. 285

You may be asking, "yes, all of this may be true (or simply wishful boasting by a US
newspaper), but what has this got to do with copyright and access barriers to
knowledge?" In fact, a great deal. While this dossier documents some of the serious
barriers to knowledge that exist and argues - sometimes quite passionately - that the
current copyright regime is one (though not the only) cause of these access
restrictions, we also suggest that an unrestricted 'free flow' of such knowledge,
whether copyrighted or not, is not the answer for the South.

283 Foreign Policy, no. 107, (Summer 1997); 38-53 Cited by Herbert I. Schiller, Living in the
Number One Country, (Seven Stories Press, New York, 2000).

284 Samir Amin, 'The Future of Socialism', Monthly Review 42, 1990, p. 29.

285 Fhe New York Times Magazine, June 7, 1997, p. 37.

142

Such a supposed 'free flow' raises a whole number of other questions including: Is
any 'flow' actually free? What ideology and biases are obvious - or encoded - in such
knowledge flows, including that available on the Internet? Are some countries, such
as the countries of Europe and North America (and a few others), actually the source
of most of the world 'knowledge' that needs to be circulated and spread? Why is
such a high percentage of the knowledge flow one-way, that is, from North to South?
Doesn't the North have lots of things to learn from the South? We certainly think it
does. And which voices from the North (and the South) actually get a chance to
speak and be transmitted?

At the same time, what are the best ways to improve the global sharing of
knowledge, to dampen down the reach of the McGlobalisation propaganda machine,
and to ensure that a greater diversity of voices is heard in the South? Is it to proclaim
the superiority of certain cultures, races, and, countries in the South? Surely this
cannot be the answer. Is the solution to launch campaigns against 'decadent Western
music' and forbid such music from being played by radio station or in public
performances? And should it be governments in the South which are given the sole
prerogative as to what knowledge can be exchanged and 'imported' by their
residents? We think this approach would only add to the democratic deficit.

These are only a few of the questions related to the dangers of cultural domination or
'cultural imperialism', as it is sometimes called. And there is certainly not the space
here to even begin expanding on these questions or attempting to answer them. Yet,
to talk about providing greater 'access to knowledge' and lowering copyright
barriers without also talking about 'what knowledge' from 'where' and promoting
'which values and which ideologies' is to miss much of the point. In other words,
copyright and content must both be examined.

Behind the 'free flow of information' approach

One question that we can take up here is: what are the objectives and methods of the
US-led campaign for a global 'free flow of information'? What follows is a series of
quotations from a number of leading US government officials, spokesmen, and
commentators over the past five decades who have endorsed, explained and led this
continuing "free flow of information" orientation. 286

a) John Foster Dulles, former US Secretary of State in the 1950' s, on the eve of the
'Cold War':

"If I were to be granted one point of foreign policy and no other, I would make
it the free flow of information." 287

b) US Assistant Secretary of State William Benton in 1946:

286 All the quotations used have been collected by the US communications theorist Herbert
Schiller and are available in his book, Living in the Number One Country, (Seven Stories
Press, New York, 2000).

287 Cited in a 1946 speech John S. Knight, 'World Freedom of Information' and published in
Vital Speeches, 1946, 472-77.

143

"The State Department plans to do everything within its power along the
political or diplomatic lines to help break down the artificial barriers to the
expansion of private American news agencies, magazines, motion pictures,
and other media of communication ... Freedom of the press- and freedom of
exchange of information generally - is an integral part of our foreign policy."

288

c) US academic Daniel Lerner writing in the 1960's as the "Third World" was
emerging:

"The long era of imperialism (subordination) is recently ended; the campaign
for international development (equalization) has just begun. In the new
process, international communication operates on behalf of different policy
purposes under different socioeconomic conditions by different
psychopolitical means. Indeed, in the transition from imperialism to
international development, there has been a fundamental change in the role of
communication. Under the new conditions of globalism, it has largely
replaced the coercive means by which colonial territories were seized and
held... The persuasive transmission of enlightenment is the modern paradigm
of international communication. " 289

d) US writer and strategist Richard N. Hauss in 1997:

"The aim of American foreign policy is to work with other like-minded actors
to 'improve' the market place, to increase compliance with basic norms, by
choice if possible, by necessity, i.e. coercion, if need be. At the core, regulation
[of the international system] is an imperial doctrine in that it seeks to
promote a set of standards we endorse. . .." 290

e) US commentator Irving Kristol in 1997:

"Our missionaries live in Hollywood. " 291

f) US academics Joseph S. Nye Jr. and William A. Owens in 1996:

"Just as nuclear dominance was the key to coalition leadership in the old era,
information dominance will be the key in the information age... Information
is the new coin of the international realm, and the United States is better
positioned than any other country to multiply the potency of its hard and soft
power resources through information." 292

288 Department of State Bulletin 14, no. 344 (1946): 160

289 Daniel Lerner, 'Managing Communication for Modernization: The Development
Construct.' in Politics, Personality and Social Change in the Twentieth Century: Essays in
Honor of Harold D. Lasswell, ed. Arnold A. Rogow (Chicago: University of Chicago Press,
1979). 182.

290 Richard N. Hauss, The Reluctant Sheriff (New York; Council on Foreign Relations, 1997),
70.

291 Irving Kristol, 'The Emerging American Imperium' Wall Street lournal, August 18, 1997,
A-14

292 loseph S. Nye Ir. and William A. Owens, 'America's Information Edge' Foreign Affairs,
March /April 1996, 20-36. .

144

g) David Rothkopf, former Clinton administration official and former managing
director of Kissinger Associates in 1997:

"it is in the economic and political interests of the United States to ensure
that if the world is moving to a common language, it is English; that if the
world is moving towards a common telecommunications, safety, and quality
standards, they be American; that if the world is becoming linked by
television, radio, and music, the programming be American; and that if
common values are being developed, they be values with which Americans are
comfortable. " 293

293 David Rothkopf, 'In Praise of Cultural Imperialism?', Foreign Policy, no. 107, ( Summer
1997); 38-53

145

SECTION 5 - RESISTANCE FROM THE SOUTH TO
THE GLOBAL COPYRIGHT SYSTEM

5.1 Introduction

Countries of the South have not recently learnt about the problems associated with
copyright; resistance has been present for some time. Resistance from the global
South can, and does, take many forms. Resistance happens within the framework of
copyright and intellectual property. For example, the General Public License (GPL)
turns copyright on its head by providing incentives to share ideas instead of own
them, but the GPL resists copyright from within the paradigm of copyright. A second
way of looking at resistance is to see the system of copyright as a system of rights
which legitimates a type of violence as people round the world are forced to adhere
to the law. Thus, one should ask: how do you go outside copyright and intellectual
property rights? Third, given the commonalities with other traditions, it is important
to consider building alliances with other areas of resistance to IPRs. This
'environmentalism for the net/ as described by James Boyle, seeks to formulate a
diverse movement working towards the same cause. Just as the early days of the
environmental movement saw people from different paths of life coming together for
a single cause, it is possible to conceptualise resistance to copyright along similar
lines. One possibility is to think about intellectual property in the context of the
International Information Order as a way of building convergence around the topic.

Though TRIPS is not the only intellectual property regime impacting on the global
South, it has served as a focal point for resistance because it clarified the international
dimensions of intellectual property and created the conditions for resistance along
north/ south lines. The TRIPS+ agenda reinforced the view from the South that
linking intellectual property to 'free trade' means free trade for the global north and
continued poverty for the global south. Thus, ten years after its inception, there are
numerous streams of resistance to TRIPS and to copyright specifically.

First, governments in the global south have resisted the TRIPS agreement since the
earliest negotiations over the terms of the agreement and have sought to mitigate the
most damaging aspects of the agreement (with little success). Second, social
movements resisting different aspects of the TRIPS agreement have emerged to raise
awareness of how the agreement threatens indigenous culture and creative work and
the relationship of TRIPS to the larger agenda of neo-liberal trade harmonization.
Third, a growing number of scholars in both the north and the south seek to develop
alternative theoretical conceptions to intellectual property. For example, scholars and
activists emphasizing the value of the public domain as an alternative to copyright
are seeking to provide a different starting point for understanding creative work.
Furthermore, developing notions of collective authorship and de-emphasising the
role of original creation are conceptual moves important to seeking alternatives to
the western copyright model. Fourth, given the fact that most people do not know, or
understand, the complexity of copyright law, sharing cultural products freely
becomes a form of resistance (and civil disobedience). Fifth, resistance also takes the

147

form of using the language of intellectual property against those who seek to benefit
from it. For example, extending the concept of intellectual property to traditional
knowledge usurps the language of property and flips the claim of piracy to account
for the actions of Westerners who appropriate freely from 'the heritage of mankind'
but claim their own 'original authorship' is the result.

Some of these forms of resistance have been covered by other propositions in the
dossier. For example, discussing the cultural underpinnings of copyright and the
importance of the public domain can be seen as forms of resistance. In this section we
will focus more specifically on direct forms of resistance. However, it is important to
acknowledge that resistance will vary given the different approaches countries
within the global South may take towards copyright. Within the 'global South'
category are developing countries that are signatories to the TRIPS agreement and
members of the WTO; indigenous actors within the global South who define their
concerns in terms of traditional knowledge and the preservation of traditional
culture and not in terms of state interests; and, finally, there are indigenous groups
within developed states. In other words, the state may not necessarily represent the
interests of indigenous actors and developing states may have different agendas than
those of indigenous rights activists. Furthermore, not all states in the global South
speak with a unified voice. This makes for a variety of different platforms.

5.2 A brief history of Southern resistance to copyright's laws and
assumptions

This section focuses on three pre-1990 periods, namely the establishment of the Berne
Convention in 1886 and in particular, the initial 'coverage' of this Convention in
countries of the South, many of them then colonies and not politically independent
countries; the late 1950s and 1960s when many countries became independent and
when their dissatisfaction with the inequities of the global copyright system lead to
what has been called 'the international crisis of copyright'; and the late 1970s and
early 1980s when a number of leading countries in the South proposed a 'New World
Information and Communications Order' (NWICO). Any movement must know its
own history and this is a 'snap-shot' and 'broad-brush' treatment of this history. 294
The history presented here, it does need to be recognised, remains an institutional
history of government action due to the paucity of sources available; a history of how
individual 'activists' in the South resisted copyright is yet to be researched and
written.

The early days of Berne in the South

The Berne Convention, the leading international copyright convention that has also
been incorporated into the TRIPS agreement - meaning it must be followed by all
members of the World Trade Organisation - is a Western-based and unreconstructed
colonial relic which countries of the South had no role in drafting and which was
imposed on them without consultation in an earlier era. The only non-European
countries represented at the Berne Convention drafting table in 1886 were Tunisia,

294 Some parts of this section are adapted from Story, CIPR Study, pp. 49-52.

148

Haiti and Liberia. (Japan and the US attended as observers; the latter did not join for
more than 100 years, finally signing in 1989.)

However, many former colonies that today comprise most of the countries of the
South became incorporated into Berne when they were under direct colonial rule.
'When nations such as France, Germany, and the United Kingdom signed the Berne
Convention in 1886, they effectively committed their colonies to the Convention's
obligations.' 295 For example, all areas that were part of the British Empire in 1886
(e.g., many parts of Africa and Asia) have been under the jurisdiction of the Berne
Convention since 1887 when Britain ratified Berne. A map showing the territorial
extent of Berne in 1914 shades in vast areas of Africa, the Indian sub-continent and
Australia as 'dependent territories'; Berne's foothold in Latin America, by contrast,
was limited to a few colonies in the north-eastern section. When colonies across the
South became formally independent countries, many during the 1950s and 1960s,
they 'increasingly chafed at the imposition of copyright treaty standards that had
effectively been imposed on them by a foreign power.' 296

The importance of the wording of the first 1886 Convention, as originally ratified and
thoroughly reflecting Western copyright values, is reinforced by the fact that any
amendments or changes to the Convention require the unanimity of all members,
Moreover, 'reservations' (an international law concept allowing a country to make
exceptions in its own legislation for its own jurisdiction 297 ) to the Berne Convention
are not permitted. Hence, Berne is a particularly rigid and inflexible treaty. And
although Berne has been amended - in minor ways - on different occasions between
1886 and 1971, when the Paris 'revision' (the current version) was formulated, its
basic structure and ideology has remained in place.

A bit more understanding on the question of reservations is required. Reservations
are not permitted after a country has acceded to a treaty. Take the example of what
might occur if one of the more progressive countries in the South decided it wanted a
reservation to Berne allowing much wider educational use of materials within its
borders; such a step might significantly loosen the grip of the rich developed
countries and their rights holders over the global use of such works. And such a step
could provide a significant legal basis upon which to oppose 'the one size fits all'
orientation of Berne and the TRIPS Agreement and the WIPO Copyright Treaty. But
there is one major hurdle such a country would face; the Berne Convention (and
similar international treaties) forbids such a step to be taken. This prohibition
reinforces, for countries of the South, the colonial nature of Berne.

295 Paul Goldstein, International Copyright: Principles, Law, and Practice ( New York: Oxford
University Press, 2001) p. 22.

296 Ibid.

297 The official UN definition of reservation: 'Reservation' means a unilateral statement,
however phrased or named, made by a State or an international organization when signing,
ratifying, formally confirming, accepting, approving or acceding to a treaty or by a State
when making a notification of succession to a treaty, whereby the State or organization
purports to exclude or to modify the legal effect of certain provisions of the treaty in their
application to that State or to that international organization. See: chapter VI, Reservations to
treaties, Part C at http://www.un.org/law/ilc/reports/1999/english/chap6.htm

149

Here is when a sampling of some other 'leading' countries in the South who joined
and became a party to the Berne Convention: Argentina (1967), Brazil (1922), Egypt
(1977), India (1928), Mexico (1967), Pakistan (1948), Philippines (1951), South Africa
(1928). Numbers of African countries joined in the 1960s and 1970s - and some others
in the 1990s.

The late 1950's and 1960's: the Southern revolt against copyright

As is well known, a great number of countries in Asia and Africa gained their
political independence in the late 1940's, the 1950' s, and early 1960's, sometimes
through armed liberation struggles (e.g. Algeria, Angola, and Cuba, among others).
Schiller explains that in many of these countries "the impositions of colonialism were
still fresh in their minds", that "these countries and their leaderships were in no
mood to accept renewed subservience, be it economic, political and cultural" and the
"class interest was not, in many cases, strong enough to override the powerful
expectations for economic improvement and equality and sovereign control of
domestic resources that the liberation struggle generated." 298

Economic growth and development often led the list of their national priorities. Their
needs in the information field - greatly expanded levels of literacy, the rapid
establishment of schools and universities at all levels, getting even limited access to
printed materials, especially in technical and scientific fields - were very different
from those of rich nations. And their proposed solutions were very different as well.
For example, the position of India was that "the high production costs of scientific
and technical books standing in the way of their dissemination in developing
countries could be substantially reduced if the advanced countries would freely
allow their books to be reprinted and translated by underdeveloped countries." 299

Independent Third World countries faced three choices in the 1950s and 1960s:

a) Join (or remain in) the Berne Convention with its 'traditionally very high'
standards and strong author's bias (the main/ sole purpose of Berne, according to
the preamble, is protecting "in as effective and uniform a manner as possible, the
rights of authors in their literary and artistic works");

b) Join the marginally looser Universal Copyright Convention (1952); UNESCO and
the US (not yet within Berne) were the main proponents of the UCC.

c) Not join either because the standards required for membership were too
demanding.

Most countries in the South quickly realised that international copyright conventions
had not been set up with their particular interests or requirements in mind. "Their
opinion of the world copyright situation as of 1963 was that it was essentially
European in orientation and [. . .] opposed to their interests." 300

298 Herbert Schiller, Mass Communications and American Empire (Boulder, Colorado, USA:
Westview Press: 1992 - Second edition), pp. 19-20

299 C.F. Johnson,' The Origins of the Stockholm Protocol', Bulletin of the Copyright Society of
the USA, XVIII (1970).

300 Ibid.

150

Meanwhile during the same period, Third World leaders such as Fidel Castro were
denouncing the dangers of copyright and intellectual property ideologies. Here are a
few excerpts from a speech he delivered in 1967 in Guane, Pinar del Rio, in Cuba on
the problems of printing and supplying books in his country. While noting that
historically "intellectual creators have generally been poorly paid and many have
suffered hunger", he continued that Cuba had adopted a decision to "abolish"
intellectual property.

What does this mean? We think that technical knowledge should be the
patrimony of all mankind. We feel that what man's intelligence has created
should be the patrimony of all mankind. Who pays Cervantes his royalties?
For intellectual property? Who pays Shakespeare? Who pays the ones who
invented the alphabet, those who invented numerals, arithmetic,
mathematics? All mankind has benefited in one way or another. All mankind
in one way or another uses the creations of man's intelligence throughout
history. From the first primitive man who took a stick in his hand to knock
down a fruit, mankind began to benefit from a creation of intelligence [...Jin
other words, all or rather the large majority of man's creations have been
accumulating through thousands of years and all mankind feels it is entitled
to the enjoyment of the creation of intelligence [. . J How is it possible to want
to deny man today, hundreds of thousands of human beings, not hundreds of
thousands, I am wrong, hundreds of millions, billions of human beings who
now live in poverty, in underdevelopment - how is it possible to want to
block the access to technology for billions of human beings, a technology that
they need for such basic things as nourishment, such as life itself [ . J We
proclaim that we consider all technical knowledge a patrimony right of all
mankind and that the peoples who have been most exploited have a particular
right to it because, where is there hunger, where is there underdevelopment?
Where is there ignorance? Where is the lack of technical knowledge? 301

As a follow-up to several UNESCO-initiated discussions in the early 1960's,
representatives from 23 African countries met in Brazzaville Congo in 1963 to begin
formulating proposals to reform international copyright conventions in such a way
that the needs of 'new' African nations (and Third World countries more generally)
could be accommodated. Over the next several years, a number of proposals were
drafted; they included a reduction in the duration of copyright, translation rights,
easier acquisition of licensed reproduction rights from Western publishers, national
jurisdiction over the regulation of uses for educational or scholastic purposes (by
contract, Berne did not and does not contain a basic education exemption), the
protection of folklore, and some other related matters. Although there was some
sympathy among certain organisations in the developed world to the particular
needs of developing countries and all governments (with the possible exception of
the United Kingdom) agreed to some concessions, the copyright access proposals of
the Third World countries were further restricted and further qualified, conference
by conference and draft by draft, over the next few years. And even a supposedly
final draft, known as the Stockholm Protocol of 1967, which had removed many of
the key earlier proposals of developing countries, was still not acceptable to authors'
organisations, publishers, and other rights holders in the developed world. To take
one example, the sharpest difference between the developed and Southern countries

301 http://lanic.utexas.edu/la/cb/cuba/castro/1967/19670430

151

occurred over the educational use issue, according to commentators. Although the
term 'educational purposes' was strictly defined in the Protocol, the addition of the
words "in all fields of education" was "wide enough to apply to mass literacy and
adult education campaigns extending far beyond the confines of the classroom." 302

Opposition quickly mounted in developed countries, especially in Europe,
particularly among rights holders and their vociferous organisations. Indeed, the
period - and the conflicts raised - has led commentators to state that there was 'an
international crisis' in copyright law and regulation. Among governments in the
developed world, the United Kingdom was the Protocol's principle opponent. On the
one hand, UK's official representatives did speak with a certain honesty and
forthrightness in its commentary on the Stockholm Protocol. The UK said that "[t]he
Berne Convention is an instrument primarily designed to meet the needs of countries
which have reached a certain stage of development." 303 On the other hand, most
British publishers did not mince their words. Sir Alan Herbert, chairman of the
British Copyright Council, called the Protocol "a delayed action bomb of dangerous
principle into the flagship of copyright; a tunnel under the walls of the copyright
fortress." 304 To continue with Herbert's military metaphor, the Stockholm Protocol
and its principles sank with little trace when confronted with such an onslaught by
the well-armed legions from the richest nations. The final set of copyright proposals
aimed at meeting the needs of developing countries became the 1971 Appendix to
the Berne Convention. But the Appendix contained no provisions for free
educational use or for any reduction in duration of copyright. Nor did it adequately
address the indigenous knowledge issue. It did, however, permit the possibility of
invoking the compulsory licensing of works if voluntary negotiations over
translations and reproduction rights - available only under very qualified conditions
- were not successful. Since 1971, these compulsory licensing provisions have rarely
been invoked by countries of the South. Writing in 1987, Sam Ricketson stated that
"only a handful of developing countries have so far availed themselves of its
provisions." 305 But while after 1971 the 'crisis' had subsided, opposition then moved
to another forum, UNESCO, within a few years.

The New World Information and Communication Order (NWICO)

After limited research, it appears to be the case that copyright issues did not play a
leading role in the call for a 'New World Information and Communications Order'
(NWICO) led by the Non-Aligned Movement in the late 1970s. At the same time,
repressive copyright laws that prevented access did play an important background
role in the concerns about media monopolies and glaring inequalities in the existing
information order that had been voiced in the 1960's as noted above.

A 1976 seminar in Tunis produced a report entitled Information in the Non-Aligned
Countries. The following excerpts give a flavour of the anti-imperialist sentiment that
was being expressed:

302 S. Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886-
1986 (London: Centre for Commercial Law Studies, 1987).

303 Johnson. Op. cit

304 The London Times, 3 and 11 August 1968, cited in Johnson.

305 p or more on th e failure of the Berne Appendix, see above.

152

o Since information in the world shows a disequilibrium favouring some and
ignoring others, it is the duty of the non-aligned countries [...] to change this
situation and obtain the de-colonization of information and initiate a new
international order in information.

o The peoples of developing countries are the victims of domination in information
and this domination is a blow to their most authentic cultural values, and in the
final analysis subjugates their interests to those of imperialism. 306

The US media and communications theorist Herbert Schiller explains the context and
the main concerns of this movement as articulated by a 1980 UNESCO Report.

The culmination of the Third World effort to restructure the global
information condition was realised in the creation by UNESCO in 1978 of
the McBride Commission for the Study of Communication Problems. The
commission's report, Many Voices, One World (1980), recapitulated many
of the themes that had occupied the discussions from the 1960s on: the power
of the transnational media conglomerates; the one-way flow of media product
and information from New York, Los Angeles, Washington, London and
Paris to the rest of the world; the excessive commercialisation of that flow;
and the need for protection of national cultural sovereignty in the face of the
cultural avalanche from the West. 307

NWICO had a relatively brief international profile. The McBride report and its 82
recommendations (grouped under five core policy areas of communication policy,
technology, culture, human rights and international cooperation) were ferociously
attacked, especially by the US government, the US media and rights holders (as well
as other governments such as the UK) as a dangerous attack on free speech, free
markets and a free press. Soon afterwards the US withdrew from UNESCO (it later
re-joined) and UNESCO itself was overtaken by the WTO and WIPO in copyright
matters. 308

Though their policy roots are not necessarily a part of the NWICO period, certain
countries have erected barriers to foreign-produced (and copyrighted) works. In
China, for example, the state allows only 20 foreign films to be distributed each year.
One report notes that such a release in China "is often delayed for several months,
long after pirated DVD versions are available for less than a fifth of the price of a
cinema ticket." 309

306 These quotations are taken from Colleen Roach, The Western World and the NWICO:
United They Stand? in Peter Goldring and Phil Harris, eds. Beyond Cultural Imperialism
(Sage 1997).

307 Schiller, 20.

308 p or more on this change, see Section 3.9 in the dossier.

309 lonathan Watts, 'Snow White and the seven kung fu monks: Disney sets sights on China',
The Guardian (UK), 5 July 2005.

153

5.3 National or regional movements opposing TRIPS as
interference in their cultural life

There is growing national, international and regional resistance to TRIPS and the
impact of copyright on cultural survival and cultural life with numerous
organizations active throughout the global south resisting the expansion of TRIPS.
The following are examples of regional movements focused on culture and TRIPS.

AfriTAN— the African section of the TRIPS Action Network —has focused on access
to medication as part of their resistance to the TRIPS agreement. Action Aid Pakistan
has developed TRIPS resistance to Agricultural Issues. The Gene Campaign has
worked with the Centre for Environmental Concerns in India to focus on intellectual
property, environment, and agricultural issues. RAFI (Rural Foundation
Advancement International) now operating under the name Action Group on
Erosion, Technology and Concentration (ETC) has also been instrumental in global
south resistance to TRIPS. 310

In the Pacific region, native Hawaiians and the Maori in New Zealand have also
developed a position critical of TRIPS and western intellectual property rights.
Mililani B. Trask, Native Hawai'ian and Indigenous Expert to the United Nations for
the Permanent Forum on Indigenous Issues stated that, 'The TRIPS agreement within
the WTO which is intended to internationalise current intellectual property laws
constitutes a major threat to the cultural integrity and rights of indigenous peoples,
including territorial and resource rights.' 311 The critique made by Trask is hinged
upon the underlying argument that TRIPS puts 'traditional knowledge' outside the
protective shield of copyright or patent law and thus 'free' to appropriate as the
'heritage of humankind.' (This underlying conflict between copyright and traditional
knowledge is dealt with in Section 3.5 of the dossier.)

However, the fact that TRIPS protects some forms of knowledge, but not others helps
to highlight the problems associated with an agreement that emphasizes individual
authorship and ownership while ignoring the fact that much of the world's creative
knowledge is not individually owned and perhaps should remain that way.

The Maori in New Zealand have also begun resisting cultural theft by developing
property rights in cultural and intellectual heritage. They established the Waitangi
Tribunal to deal with these issues. 312 The aboriginals in Australia have perhaps
moved the furthest down this path by trying to develop a system that would protect
their art and culture within the framework of copyright law.

310 For occasional papers and updates see: http://www.etcgroup.org/publications.asp

311 Mililani B. Trask, 'Globalization and Indigenous Rights,' Paper presented at the Third
International Conference on Diversity in Organizations, Communities and Nations. East-West
Center, Honolulu, Hawai'i, February 13-16, 2003, 5.

312 Leo Watson and Maui Solomon, 'The Waitangi Tribunal and the Maori Claim to their
Cultural and Intellectual Heritage Rights Property/ Cultural Survival Quarterly, Vol. 24,
lanuary 31, 2001, 46.

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Resistance is also growing throughout Latin America. In 1999, Brazilian indigenous
peoples met at the National Encounter of Pajes to talk about traditional knowledge
and bio-piracy where they issued a declaration seeking to stop the theft of
indigenous knowledge. 313 In December of 2001, indigenous representatives in Brazil,
representing over 360,000 indigenous peoples met in Sao Luis to again discuss the
issue of Indigenous Knowledge and develop a statement resisting the western
definition of intellectual property. 314

These examples suggest that disagreement with TRIPS and its methodologies can be
found throughout the globe. However, it is also important to recognize that
resistance exists at the governmental level and trans-national level as well. The
following two sections help illustrate how resistance is coalescing around the issue of
free trade and access to knowledge.

5.4 Venezuela initiative on the rights of authors

In November of 2005, negotiations surrounding the Free Trade of the Americas
Agreement (FTAA) agreement broke down amidst massive social protest and
differences in how to approach trade between the United States and its trading
partners in Latin America. Led by Venezuela, many countries in Latin America have
begun to resist the notion of a free trade agreement with TRIPS-like language.
Instead, countries throughout Central and South American are beginning to coalesce
around an alternative plan and one that more closely aligns trade with poverty
reduction and the extension of social services. One important part of this process is
the 'authors' rights' initiative developed in Venezuela.

In 2005, Venezuela's Autonomous Service of Intellectual Property (SAPI) created a
new initiative to articulate the growing concern of the Venezuelan government
regarding corporate control over intellectual property. This new initiative seeks to
develop and protect 'authors' rights' as separate from the commercialization of
copyrights. The Director of SAPI, Eduardo Saman, said of the initiative that, "The
idea is to capture the essence of the author's right, and that this belongs to the natural
person, the composers, the writers, the interpreters, the artists, and performers. And
that corporations keep away from the legislation, and that they do not enjoy any
human right like [sic] authorship." 315

The author's right would allow for copyright to remain with the individual author
and disallow corporations from appropriating these rights to further exploit authors.
The intent is to provide more autonomy to the author, who under current practice is
required to sign over copyright to the publishing company and thus lose control over

313 Stanley Krippner, 'The Manifesto/ Brazil, N. 162, June 30, 1999, 55.

314 Declaration of Shamans on Intellectual Property and the Protection of Traditional
Knowledge and Genetic Resources. Made available to the Intergovernmental Committee by
the Delegation of Brazil. Available at:
http://www.nativeweb.org/pages/legal/shamans.pdf.

315 Quoted in Maria Isabel Ceron, 'Intellectual Property is a Human not a Corporate Right:
Propiedad intelectual es un derecho humano no corporative.' SAPI, Autonomous Service of
Intellectual Property, http://www.sepi.gob.ve/web/index.php, 2005.

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their works. Under this new paradigm, the author would retain copyright control
and enter into a contract relationship with a publisher that could be renewed or
ended in order for the author to seek a more mutually beneficial relationship. 316

SAPI itself sees its objectives as promoting sustainable economic and social
development by improving access to knowledge. 317 While part of SAPI's task is to
protect items falling under an intellectual property rubric, their goals and objectives
are distinctly different from many similar organizations found in the global North.
Not only does SAPI concern itself with how copyrighted works are shared, but also
sees itself as integral in protecting traditional knowledge and biodiversity. 318
Protecting an 'author's right', which maps most closely to a moral rights perspective,
is also essential to this initiative.

SAPI's author's rights initiative is part of a much larger resistance to neo-liberal
globalization emerging out of the Bolivarian Alternative for Latin America and the
Caribbean (ALBA). 319 ALBA is Venezuela's alternative to the Free Trade of the
America's Agreement (FTAA) and focuses on poverty reduction and regional
integration that benefits more than transnational corporations. 320 ALBA also offers an
alternative to intellectual property as defined by the United States:

The ALBA is also opposed to the intellectual property rights regimes on the
grounds that they only protect the areas of scientific and technological
knowledge that developed countries control, while at the same time leaving
unprotected those areas in which the developing countries have considerable
advantage: biodiversity of their territories and the traditional knowledge of
peasant and aborigine peoples. The fact also contributes to deepening the
asymmetries that exist between countries. 321

Venezuela has taken the lead in opposing neo-liberal trade, along with Argentina,
Brazil, Paraguay and Uruguay. 322 Venezuela is developing through ALBA an
alternative trade approach and has currently established an agreement to sell oil for
medication with Cuba. 323 ALBA is not without its critics. Specifically, anti-GMO
activists are upset because GMOs would still be traded under the agreement. 324
Furthermore, many see the agreement as not going far enough in attempting to solve
the problems faced by many countries in Latin America and offering only a
superficial alternative to the FTAA. However, ALBA does offer an alternative to free

316 Andrea Coa, '^Rights of Authors as a Form of Economic and Cultural Domination of
Imperialism: Derechos de autor como medio de dominacion economica y cultural del
imperialismo?' Paper presented at the International Congress of Culture and Development.
Ministry of Culture, lune 6-9, 2005. http://www.sapi.gob.ve or http://www.cult.cu.

317 'History of SAPI/ http://www.sapi.gov.ve.

318 Ibid.

319 Teresa Arreaza, 'ALBA: Bolivarian Alternative for Latin America and the Caribbean/
lanuary 30, 2004. http://www.venezuelanalysis.com/ docs. php?dno=1010.

320 Ibid.

321 Ibid.

322 Cory Fischer-Hoffman, 'Argentina: The People's Summit Against the FTAA/ November 7,
2005. http://www.upsidedownworld.Org/main/content/view/110/l.

323 'An Alternative to the FTAA?' Bugs' Blog. Tueves, 13, 2005.
http://bbugs.blogspot.com/2005/01/alternative-to-ftaa.html.

324 Fischer-Hoffman, Op. Cit.

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trade as defined by the United States with a different framework that considers not
only copyright issues, but issues related to creating a better society for all. As such, it
is a form of resistance, if a small act, that is worth commenting upon and researching
further.

5.5 Resisting the privatisation of cultural life

Resisting the privatisation of cultural life has been taken up in some detail in Sections
One and Three of the dossier. Identifying the harms associated with privatisation
suggest certain avenues for resistance. Specifically, if the problem with copyright is
that it privatises cultural life, then a clear method of resistance is to foster a vibrant
public domain, endorse programs that encourage the free flow of culture and
information, and make the critique of privatisation as public as possible in order to
allow people to understand the costs. Because the global South cannot be easily
described as a single constituency with a uniform platform, how countries in the
global south resist the privatisation of cultural life will vary.

First, developing countries that are members of the WTO may seek revisions to the
TRIPS agreement as a form of resistance. While not the most radical form of
resistance, these states have at some level endorsed (or been coerced into supporting)
the neo-liberal globalisation model and thus seek to create change from within. States
choosing to follow this path may find the Access to Knowledge model discussed
below compelling, even if it offers only a limited critique of the current system. States
pursuing change within the TRIPS agreement or WIPO through the 'development
agenda' are not automatically rejecting the privatisation of cultural life - at least not
at the level of publicly endorsed policy, but instead may seek to preserve their own
ability to maximize cultural profits. While this dossier remains critical of any
approach that seeks the privatisation of cultural knowledge, it should also be
recognized that the resistance of many states in the global South takes the form of
rewriting TRIPS. The rejection of copyright as currently understood is typically left to
activists while governments negotiate terms more in their interests.

A second mode of resistance is constructing alternative creative paradigms. Brazil
stands out as one country actively seeking such an alternative to copyright law.
Brazil is developing projects focused on the use of the creative commons, free
software, and the exchange of music outside the scope of copyright. In Brazil, there is
growing interest in, and respect for, the language of open societies that is at the heart
of many developing country platforms related to intellectual property. Thus, while
the language of open source initially applied only to computer software, it is now
being applied to textbooks, music and knowledge more generally. This open source
language is meeting with growing endorsement around the world. 325

325 TecTonic: Africa's Source for Open Source News, 'Free Software in Africa - 2005, A Year
for Real Growth/ January 11, 2005. http://www.tectonic.co.za/ view. php?id=399 (looks at the
application of open source computer technology to Africa); For a South African initiative on
open source textbooks see: Free High School Science Texts - http://www.nongnu.org/fhsst/;
California is seeking to develop a similar program to offset the enormous cost of textbooks in
the state. See: California Open Source Textbook Project -
http://www.opensourcetext.org/index.htm; Finally, there is an initiative to establish a

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The rejection of the privatisation model is also articulated in the work of those
seeking to protect traditional knowledge. These actors can be found throughout the
global South, but also in developed countries (for example, the Maori or the Native
Hawai'ians). There are several themes embraced by supporters of traditional
knowledge that serve as the foundation for resistance. First, culture should not be
commodified. Second, culture is integrally linked to traditional knowledge and both
are expressions of groups of people, not individuals. Third, the relationship of people
to the environment is essential and should be respected. Fourth, that much of what is
considered traditional knowledge is sacred.

Many indigenous groups have attempted to resist the expansion of individualized
intellectual property rights by articulating a collective or group right to traditional
knowledge. Others demand compensation for the theft of knowledge and resources
that have been co-opted into a system of intellectual property. Here are some
examples:

The National Encounter of Pajes

Some of the demands of the National Encounter of Pajes, a meeting of Brazilian
indigenous leaders from numerous different indigenous nations include:

o There are patent laws that register under the names of outsiders what, in truth, belongs to
us. These laws are neither good nor just for indigenous people. These laws permit the theft
of our knowledge. We demand a new law, one that gives voice to the Pajes - as
representatives of indigenous people, one that guarantees that we have the rights to what
is ours. We want to be heard and we want our wishes to be respected whenever laws are
made concerning this matter.

o We know that various plants, animals, insects, and even our own blood samples are
exported from Brazil to other countries. Our land is like an open market, where anyone
can enter and carry away whatever they like. We demand that the Brazilian government
monitor its own gateways in order to establish a better protection of its own patrimony.

o The future of our traditional knowledge, a rare and precious resource for all humankind,
might not be secure. Our Pajes and our elders are dying with illnesses that did not exist
in the old days. Many of our children and our young people are dying of illness and
starvation. Therefore, we demand that the authorities assist us in maintaining our health
and guaranteeing the survival of our people.

o The Earth is our Great Mother. Nature is the largest and best pharmacy that exists in the
world. Without nature, our traditional knowledge will not be useful to our people or to
the rest of humanity. The invaders' greed has resulted in the transformation of our
national resources into money. This greed has brought sickness, starvation, and death to
our people. During the fires in the northern state ofRoraima, many animals, herbs, and
vines that we used in our medicines perished, and no longer exist. Our Great Mother
Earth is mortally wounded, and if she dies, we will die as well. If she dies, the invaders
will have no future. Therefore, we demand protection of our lands. We demand the

creative commons licensing agreement for textbooks. See: Open Textbook ■
http:/ /www. opentextbook.org/ .

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guarantee, through demarcation, of the space that is necessary for our physical and
cultural survival. 316

The Declaration of Shamans on Intellectual Property

The Declaration of Shamans on Intellectual Property and the Protection of
Traditional Knowledge and Genetic Resources declares that:

We propose the adoption of a universal instrument of legal protection of
traditional knowledge - an alternative, sui generis system distinct from the
regimes of protection of intellectual property rights and that addresses,
among other aspects: the recognition of indigenous lands and territories and
consequently its demarcation; the recognition of the collective property of
traditional knowledge as not subject to expiration in time and as non-
negotiable and of the resources as public interest goods; the right of local
indigenous peoples and communities to deny access to traditional knowledge
and to the existing genetic resources in their territories; the recognition of the
traditional forms of organization of the indigenous peoples; the inclusion of
the principle of prior informed consent and a clear disposition with respect to
the participation of indigenous peoples in the fair and equitable distribution
of benefits resulting from the use of these resources and knowledge; and the
continuity of free exchange of resources and traditional knowledge among
indigenous peoples. 327

While incomplete, these examples are indicative of platforms expressing an interest
in protecting traditional knowledge. They are concerned with an articulation of
group rights, collective ownership, establishing walls against the appropriation of
knowledge into the intellectual property system, and the establishment of control
over what is deemed traditional knowledge. Other concerns over privatisation are
addressed through the types of resistances described throughout this section.

5.6 Possible alternatives to copyright in the South

Numerous alternatives have been proposed. These tend to be along the lines of those
outlined earlier in this section. They range from the following:

1. A system of group rights that places traditional knowledge in a permanent
condition of cultural protection.

2. The use of copyright laws to protect traditional designs and culture from
appropriation and misuse.

3. Resisting the expansion of TRIPS-plus type legislation at the international level.

4. Utilizing the concept of open source licensing and applying this concept to all
areas of creative work and cultural exchange.

5. Arguing for a strong layer of technology transfer and information exchange at the
international level in order to ensure that developing countries do not get left out
of technological progress.

326 Stanley Krippner, 'The Manifesto/ Brazil, Vol. 162, June 30, 1999, p. 55.

327 http://www.nativeweb.org/pages/legal/shamans.pdf

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6. Developing a limited system of rights with short terms for protection but without
the lengthy terms inherent in the copyright system.

7. Eliminating copyright.

8. Resisting commodification and attempting to retain access to knowledge as a
human right and not a commercial right.

As outlined in the first four sections of this dossier, there are serious problems
associated with copyright and its application in the global South. While there may be
some role for a system of copyright protection, creativity and invention certainly
happen outside the boundaries of copyright law.

A system of copyright allows for creative works to be privatised and primarily
benefits the owners of copyrights. The owners of copyright are often not the same as
the original creators of the artistic work. Take the example of classic American jazz
artists. Many of these talented musicians, responsible for creating one of America's
most original musical forms, were paid flat rates for their most important
contributions to this music. The bulk of the profits produced by jazz artists went to
the labels and producers with many of the most talented musicians dying penniless.
Copyrights did nothing to encourage innovation and creativity in this example, but
rather established a system of exploitation in which those who create are not likely to
benefit from their creations. Furthermore, copyright makes it difficult to build upon
the earlier work of other jazz musicians by privatising the music and requiring
licences to use even the smallest portions. Such monopolization of music is a barrier
to the creation of new works instead of facilitating new creation. The same type of
problems will exist as countries throughout the global South come to see music as a
form of property instead of a cultural treasure. 328

Instead of assuming the western system spurs innovation, it is important to
recognize that most of the important innovation and creativity happens during
relatively open and less regulated eras where people work for the common good
instead of individual property rights. 329

Given this framework, the alternative system must begin with normative assertions
of innovation and creativity for the purposes of mutual aid. It is possible to innovate
at the most sophisticated levels without the incentive of intellectual property as a
guiding force, but with the incentive of providing for the public good. For example,
witness the success of Cuban pharmaceutical research in developing essential
medicines without recourse to patent law, but instead attempting to ensure that their
contributions will not be unlawfully appropriated by the patent system.

328 Anthony McCann maps the enclosure of Irish folk music in his dissertation, 'Beyond the
Commons: The Expansion of the Irish Music Rights Organization, the Elimination of
Uncertainty, and the Politics of Enclosure' (2002. Available

http : / / www .beyondthecommons. com/ bey ondthecommons. html) .

329 Petej- Kropotkin makes a very compelling argument for this point, arguing that the
innovations of the 18 th and 19 th centuries often attributed to individualism would never have
been possible without the paradigm of mutual aid that existed in the 15 th -17 th centuries. See:
Peter Kropotkin, Mutual Aid: A Factor of Evolution, Boston, Extending Horizons Books, 1955.

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It should also be recognized that sharing innovation does not necessarily mean that
no profits can be made, but rather that profits will not take precedent over essential
human values such as sharing and mutual aid.

5.7 The A2K (Access to Knowledge) treaty group

The Access to Knowledge (A2K) group is a relatively informal and primarily US and
European-based group of activists (plus a few academics, mostly American) drafting
an 'access to knowledge' treaty. The A2K group aims, in the first instance, to have
this draft treaty signed by governments, particularly governments of the South, and
especially those pursuing a 'development agenda' at the World Intellectual Property
Organisation. There are also persons from the South involved in A2K. The main
focus of the group is improving 'access to knowledge,' especially in the South - and
hence its work and objectives are worth commenting upon and assessing.

The most recent large session of the A2K group was held in London on 12 and 13
May 2005. What follows is an edited 'backgrounder' to that session— prepared by
Kaye Stearman of the Trans-Atlantic Consumer Dialogue (closely linked to the CP
Tech group based in Washington, and Consumers International, headquarters in
London) — and then it comments briefly on the orientation and direction of the A2K
group. 330

First, Stearman' s report:

In September 2004 an expert group of academics, educators, representatives
of libraries, consumer organisations, the open source movement and others
gathered in Geneva to discuss reform of the World Intellectual Property
Organization (WIPO). The meeting laid down a challenge to WIPO to
reform rules relating to intellectual property (IP), such as copyright and
patents. The problem is that the balance of some IP rules have shifted too far
towards the protection of rights-holders, and removed the traditional rights of
users.

A major problem was how to provide wider access to knowledge, especially for
poorer consumers in developing countries. A second meeting in Geneva in
February 2005 determined that the world needed a new treaty, or at least
principles, to redress this imbalance as part of a ^development agenda' led by
the Consumer Project on Technology (CPTech), an expert group began
drafting a Treaty on Access to Knowledge

A third meeting convened at Queen Mary College in London on 12-13 May
2005 to take the draft forward. Of around one hundred participants around
half were academic or legal experts, and half represented consumer and user
groups. A substantial minority came from developing countries, including
Brazil, India, Kenya, Malaysia, South Africa and Zimbabwe. All were keen to
listen, learn and argue points of law and substance.

330 Before the London session, a 9 May draft of the draft treaty (containing a total of 12 articles
on a wide range of access issues) had been prepared; it is available at:
http://www.cptech.org/a2k/consolidatedtext-may9.pdf

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So where does the draft Treaty go from here? The next step will be to
incorporate all the amendments, additions, omissions and other suggested
changes to produce a new draft that will be circulated to meeting participants
for final comments. When this has been completed, the draft can be presented
to governments and promoted around the world, maybe even at the WIPO
General Assembly in September 2005. Ultimately, it is hoped that the treaty,
or at least the ideas that are driving it, will be adopted and ratified by WIPO,
and incorporated into national laws and a modern way of looking at
intellectual property.' 331

Both prior to the London session and afterwards it seemed (and seems) clear that the
starting point and overall philosophy in choosing this particular drafting language
and this particular approach was often not derived from the actual on-the-ground
access needs of the different users and different constituencies in the South. On the
one hand, there has been an extreme paucity of research or discussion within the
A2K group as to what such access needs actually are, particularly in the South. To
take two examples:

o There is a constant preoccupation with delivering content/ access through the
Internet when, in fact, many parts of the South, especially in the poorest
countries, lack even rudimentary Internet access for a variety of reasons (such as
economic conditions, small percentage of population with access to a computer,
poor quality telecommunications links, etc.) In any event, what type of
'knowledge' predominates on the Internet and in what language?

o Key access issues for the South, such as 'indigenous (or traditional) knowledge'
and translation, are not even mentioned in the draft and others, such as distance
learning and libraries, were dealt with as if the access situation under debate was
that prevailing solely in Boston or Berlin.

On the other hand, and this is the more critical point , this group and its draft A2K
treaty start - and essentially end - by funnelling all access questions through a
traditional copyright lens, albeit a slightly more liberal and pro-user friendly version.
For example, instituting a more liberal US 'fair use' or UK 'fair dealing' regime in the
South is viewed as the principle and essential answer for overcoming access
problems in the South. Traditional privileged actors in copyright discourse, such as
'authors' retain a privileged place (as they do with Creative Commons licences; see
section 5.9 of this dossier). Well-known copyright barriers affecting, for example, the
visually impaired (e.g. how any type of reproduction needed to produce materials in
an accessible format is necessarily an infringement of copyright) are not challenged
head-on. This document avoids suggesting that changing the format of a document
to allow access should legally not be considered as reproduction. (If such changing
the format was not considered reproduction, visually impaired groups would avoid
any liability for a copyright infringement as they do now.) Nor are collecting
societies tackled and current distance learning barriers, which are very important in
the South, are simply tweaked (See Section 4.3 of this dossier on distance learning in
the South and copyright barriers).

331 Funders for this London session were the Rockefeller Foundation, the Open Society
Institute, and the John D and Catherine T. MacArthur Foundation

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Furthermore, there is an unchallenged belief in the value of existing legal measures
and approaches to correct the current imbalance in copyright regimes. Examples
include the inclusion of Article 7.1 and 7.2 and some of the discussions in London,
such as the remarks of a leader of the A2K group, when he suggested that countries
in the South should establish anti-competition and anti-trust measures and regimes
as a key way to challenge copyright and IP monopolies. In fact, the litigation and
regulatory history from the North (e.g. the US and EU challenges to the Microsoft
software monopoly) shows how weak and ineffective such a strategy usually is,
especially in isolation. In the same vein, there is an overwhelming focus on
compulsory licensing, despite the high transaction costs and 'discouragement' costs
they entail as shown, for example, by the abject failure of the Berne Convention
Appendix to improve access as discussed in this dossier in Section 4.12. And finally
the draft treaty is filled with legal 'weasel words' and phrases such as 'reasonably
effective measures' (e.g. Article 3-1). The interpretation of such phrases (presumably
by a World Trade Organisation panel) would be based on existing pro-owner
jurisprudence and give little certainty or comfort to potential users, except for those
with deep pockets who are able to fund such litigation. (See Section 4.12 of this
dossier on the problems South African universities have faced in funding such
litigation.) Rather than a badly needed and bold analysis of copyright law, its
presumptions, its ideologies and how these act as an access barrier, the A2K drafters
remain trapped in traditional copyright legal narratives; they focus on 'limitations
and 'exceptions' (that is, 'limitations and exceptions' to the normal and 'natural' form
of works as copyrighted works) and how to interpret them in a more favourable
light, (e.g. Article 3-1).

Conversely, there is an implicit assumption that the proposed drafting language of
the A2K treaty would actually 'pass muster' internationally. For example, if country
X actually passed such an A2K treaty and included the proposed treaty language in
its own domestic copyright legislation, it is assumed that such legislation would
actually withstand a legal challenge from a WTO Panel if country Y (likely the US or
the European Union) made a complaint to the WTO about such domestic legislation
in X. To give one example, the proposed A2K treaty language would, in repeated
instances, not fulfil the requirements of the infamous Berne Convention (and TRIPS
and WIPO Copyright Treaty) 'three step' test; this test states that reproduction of
copyrighted works is permitted "in certain special cases, provided that such
reproduction does not conflict with a normal exploitation of the work and does not
unreasonably prejudice the legitimate interests of the author." (The first (and
leading) WTO panel of 2000 to examine the 'three step test' gave a very restricted
reading (to users) of the 'three step' test - and the proposed treaty language would
not be in accordance with that decision. 332 )

It might, of course, be a valuable exercise for country X to propose draft legislation
that challenged Berne Convention presumptions, to have it enacted by country X,
and to 'fight the good fight' against country Y if such legislation is challenged at the
WTO. And a legal defeat at a WTO panel (say on access for the visually impaired)
could, in turn, form the basis for an important agitation campaign over the longer
run and an expose of the rottenness of current international rules. But before country
X actually enacted new copyright laws based on the proposed A2K treaty, X's legal

332 The decision is available at: http://www.worldtradelaw.net/dsc/panel/us-
copyright(dsc) (panel) .pdf

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experts would likely (if they are good lawyers!) raise the question as to whether any
proposed legislation could be squared with the access restrictions of Berne and
TRIPS — and is not merely a 'wish list.' To do otherwise would simply be foolhardy.

Significantly, a number of the US copyright legal academics in attendance at the
London A2K session admitted privately that the proposed A2K treaty would,
without any doubt whatsoever, be struck down by a WTO panel for non-compliance
with the Berne Convention and TRIPS. But publicly, none of these academics voiced
such concerns; hearing such views might have been a sobering experience for those
in attendance in London.

The slogan 'access to knowledge' is, on the surface, a slogan with which it is difficult
to disagree. But to actually have any impact and import - beyond being a mere 'feel
good' and Enlightenment-based slogan - the notion of 'access to knowledge' and
especially the 'knowledge' component requires more assessment. What 'knowledge'
are we talking about here? Why is some 'knowledge' being privileged? Who is
producing 'knowledge' and where in the world are they doing it? What are the
conditions that are leading to 'knowledge' production in some places - and much
less so elsewhere (or at least what seems to be termed as 'knowledge' by the A2K
proponents.)? Who needs to know about such 'knowledge'? These rather central
questions are not addressed by A2K proponents; indeed, even asking them is
discouraged. The operative and unchallenged assumption is this: the aim of an
'access to knowledge' treaty is primarily to allow users in the North and the South to
access the knowledge (and the values and ideology associated with that knowledge)
produced in the North. (For more on this important question, see Section 4.13 of this
dossier.)

In conclusion, the current A2K treaty approach is, on the one hand, trapped in
existing legal categories, especially those prevailing in the US and Europe and wants
to export them to the South. And, on the other hand, the A2K does not appreciate the
restraints existing international agreements impose... and does not appear to want to
know as it might 'pop the bubble' of this project. The words voiced by some at the
closing of the London session, that the A2K movement will be able to 'take over
WIPO', seems rather far-fetched, and even if this fantasy was realised, would
actually mean little in providing wider access to 'knowledge'— however that term is
defined.

While the ultimate intent of the A2K process is in question and while the A2K treaty
remains fully within the scope of contemporary copyright ideology, there is an effort
here to shift the debate, if only by a small increment, to favour the global South. Even
the failure of A2K helps highlight the problems associated with copyright law at the
international level and the difficulty in changing the system from within.

5.8 Free software: a viable and cheaper alternative

Proprietary software is a serious threat to social values throughout the world, and in
the global South this threat is even more virulent. First, proprietary software
companies engage in anti-competitive behaviour. For example, in Africa, Microsoft

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gives away their software and hardware, but then ties those using their products into
licensing agreements that require payments over the long term.

In Argentina and Chile, the government provides credit to buy computers with
proprietary software installed, but they do not provide the same credits for free
software packages. The programs in Argentina and Chile are called "Mi PC" and "Mi
primer a PC" respectively and are the result of a joint initiative between Intel,
Microsoft and other smaller technology companies. Additionally, a program called
"Partners in Learning" exists to sell discounted licences for Windows and Office to
educational institutions under the condition that schools teach children to use these
programs. While the program does not exclude the use of other software, most
teachers are unaware of alternatives and with the limited time available simply
utilize the proprietary software.

Second, when proprietary software is the primary choice made available, there is no
technology transfer because the source code is not transferred with the technology.
Given the control proprietary software firms and their business organizations (like
the Business Software Alliance) have in the global South, the struggles facing the
growing free software movement are immense. However, the free software
movement offers an important form of resistance to the monopoly power of
proprietary software and a better paradigm for the creation, distribution, and use of
computer software.

Free software is not to be confused with open source software. While those involved
in the open source movement often conflate the terms 'free software' and 'open
source,' those working within the free software movement seek to keep the concepts
and ideas distinct. The concept of free software originated with Richard Stallman,
creator of the GNU licence and the free software foundation. 333 Many working in the
Linux tradition found the term 'free software' confusing (because of the connotations
of the word free) and the term 'open source' was coined by Christine Peterson,
President of the Foresight Institute, as a possible alternative. The term open source
has since caught on. 334 The difference between open source and free software is
described by Richard Stallman as,

For the Open Source movement, the issue of whether software should be open
source is a practical question, not an ethical one. As one person put it, "Open
source is a development methodology; free software is a social movement. ' '
For the Open Source movement, non-free software is a suboptimal solution.
For the Free Software movement, non-free software is a social problem and
free software is the solution. 335

Thus, open source and free software are distinct entities, which reinforce one
another: open source-style development is not possible if the software is not free, and
free software is often enriched by software developed in an open source fashion.

333 p or information on the history and theory behind free software visit Richard Stallman' s
website at: http://www.gnu.org/copyleft/gpl.html.

334 See: Sam Williams, Free as in Freedom: Richard Stallman's Crusade for Free Software,
Beijing: O'Reilly, 2002, pp.161-162.

335 Richard Stallman, "Why Free Software is Better than Open Source,"
http://www.gnu.org/philosophy/free-software-for-freedom.html.

165

However distinct these entities are in terms of ideas and people behind them,
though, the overlap between free software and software developed in open source
fashion is large enough to say that they comprise the same programs.

For the purposes of access to computer technology throughout the global south, both
open source software and free software can offer substantial advantages over the
proprietary model. Furthermore, these movements offer an alternative to the
proprietary model that is important in staking out an independent future of
countries in the global South. Thus, while not perhaps typically conceptualized in
terms of resistance, these software movements are engaged in a form of constructive
resistance. Instead of resisting through opposition, free software resists by
constructing an important alternative model that can provide the global South with
options beyond becoming beholden to the proprietary software packages of the large
computer companies.

It is clear that free software is a viable and cheaper alternative to proprietary
software for the following reasons. 336 First, as a general rule, deploying free software
is cheaper than a proprietary software package. While it is possible for the person
with whom the software originates to charge whatever they like for the software, this
person cannot keep the user from redistributing the software for free. The
consequence is that the price of a copy sinks quickly. For example, the GNU/ Linux
operating system can be downloaded from the Internet for free and distributed
without consequences unlike proprietary software.

Second, because there are no restrictions on how many copies can be made, free
software and open source software eliminate the concept of piracy and the legal costs
of implementing a software package are reduced considerably. Third, most computer
programmers agree that free software is more reliable and secure, reducing costs for
computer shutdowns and security patches. Under the proprietary model a user must
wait for the software company to address these issues, which may not happen
immediately. For example, when a new security hole is found in the Microsoft
system, one must wait until Microsoft issues a patch for the hole before it can be
fixed. Not so with software package where any number of programmers may issue
the patch themselves. Fourth, open source or free software allows a government
agency or company to create their own adaptations that tailor the software to their
needs, something that is illegal under proprietary software agreements. The ability to
tailor software allows companies to remain autonomous of the software
companies. 337 However, it is important to remember that free software is about more
than the cost. It's a matter of freedom, independence and local capacity. Only by
understanding proprietary software within the larger political economy can the true
potential of free software and open source as tools for economic liberation be seen.

Instead of wasting resources developing anti-piracy strategies and policing the use of
software, one can simply shift to a type of software where these tactics are
unnecessary. Open source and free software allows us to rethink our ideas of

336 These arguments are detailed by Eric Raymond, a proponent of open source software. See:
Eric Raymond, The Cathedral & the Bazaar: Musings on Linux and Open Source by an
Accidental Revolutionary (Beijing: O'Reilly, 1999.)

337 Ibid.

166

property rights and is an important aspect of any future innovation model. 338
Furthermore, open source and free software highlight that those who suggest a
proprietary model is the only or the best way to proceed are simply wrong. Free
software constitutes clear and incontestable evidence that the contention that the
production of quality software depends on the enforcement of strong copyright, and
that innovation depends on patents is wrong. Free Software signs strong copyright
away in order to fuel production and innovation and has produced a better product
in the process.

5.9 The Creative Commons approach

Creative Commons (CC) licences are a relatively new phenomenon and are growing
in importance and popularity, including across the South. This section gives a brief
backgrounder on CC and its various licences and then essentially lists, in a
preliminary way, some of the pros and cons of this approach. 339

What are the Creative Commons and what types of licences do they
provide?

From Wikipedia:

The Creative Commons (CC) is a non-profit organization devoted to
expanding the range of creative work available for others to legally build upon
and share ... The Creative Commons website enables copyright holders to
grant some of their rights to the public while retaining others, through a
variety of licensing and contract schemes, which may include dedication to
the public domain or open content licensing terms. The intention is to avoid
the problems which current copyright laws create for the sharing of
information.

Creative Commons was officially launched in 2001. Lawrence Lessig, the
founder and chairman of Creative Commons, started the organization as an
additional method of achieving the goals of his Supreme Court case, Eldred v.
Ashcroft. The initial set of Creative Commons' licences was published on 16
December 2002.

The Creative Commons Licence refers to the name of several copyright licences
released on December 16, 2002 by Creative Commons, a US nonprofit corporation
founded in 2001.

These licences all grant certain baseline rights, such as the right to distribute the
copyrighted work on file sharing networks. The copyright holder has the option of
specifying certain extra conditions:

338 Steven Weber, The Success of Open Source, Cambridge and London: Harvard University
Press, 2004. Weber argues the open source allows us to radically rethink our ideas about
property.

339 The main website of CC is http://creativecommons.org/.

167

o Attribution (by): Permit others to copy, distribute, display, and perform the work

and derivative works based upon it only if they give you credit.
o Noncommercial (nc): Permit others to copy, distribute, display, and perform the

work and derivative works based upon it only for noncommercial purposes.
o No Derivative Works (nd): Permit others to copy, distribute, display and perform

only verbatim copies of the work, not derivative works based upon it.
o Share Alike (sa): Permit others to distribute derivative works only under a licence

identical to the licence that governs your work. (See also copyleft.)

Mixing and matching these conditions produces sixteen possible combinations, of
which eleven are valid Creative Commons licences. Of the five invalid combinations,
four include both the 'nd' and 'sa' clauses, which are mutually exclusive; and one
includes none of the clauses, which is equivalent to releasing one's work into the
public domain. The five licences without the Attribution clause are being phased out
because 98% of licensors requested Attribution.

The pros and cons of CC licences in the South

In favour of Creative Commons licences, there are several arguments. CC licences
demonstrate a positive attitude towards the sharing of (and wider access to)
'knowledge' and information. CC licences provide some alternatives for authors and
other creators, such as musicians, to some of the traditional proprietary
presumptions of copyright law. This is obviously positive and we endorse those who
wish to break away from the 'traditional' model which allows publishers, recording
companies and other large rightsholders to hold unchallenged authority over
distribution.

When persons use a CC licence -either as a creator or as a user - they may become
more open to appreciating how traditional copyright restrictions and restraints block
access. In other words, CC may provide a reformist window that will open up into a
wider and systemic critique of the existing system. At the same time - see the section
below - CC users may, in the alternative, become more entrenched as to the
purported societal benefits of copyright. It will be interesting to watch which strand
and which ideology triumphs.

However, there are some disadvantages and some questions that need to be asked as
well. CC licences privilege the position of the author as is done in the traditional
copyright paradigm: she/he (and not the wider society or users generally) is the sole
person who decides whether and how and to what extent a work is accessible. This is
not surprising as CC operates within the ideological presumptions of copyright; as
explained on its website, CC "offers a flexible copyright for creative work [...]
Creative Commons offers a flexible range of protections and freedoms for authors
and artists. We have built upon the 'all rights reserved' of traditional copyright to
create a voluntary 'some rights reserved copyright'." In other words, an actual or
potential user of the work is required to accede to the access/ use decisions made
solely by the author . . . who is the person holding copyright.

CC also privileges the notion of the desirability of creating property rights in
expressions; cultural and literary products are considered as commodities, albeit
ones that the creator can decide (or not decide) to make accessible, much like a
person can decide whether or not to invite someone into her or his house. As Lessig

168

writes, "I am fanatically pro-market, in the market's proper sphere. I don't doubt the
important and valuable role played by property in most, maybe just about all
contexts." 340

There is wide variety of CC licences and some of them change traditional access and
use provisions by a relatively small degree. One emerging issue that should be of
concern is that the increasing numbers of licensing options may become confusing
and create additional costs for the use of software. 341 This concern should be watched
as the types of licences may become even more complex and confusing until a single
model is settled upon.

It is unlikely that more than a tiny percentage of the works created on a global basis
in any year will be available under CC licences. Will the percentage be even less
within the South? This seems likely. Hence, CC licences will be of limited value in
meeting the expansive access needs of the South in the near future. Nor do CC
licences provide access to already published works or music that are still restricted by
copyright laws; these form the overwhelmingly majority of current material.

Focusing on CC licences may potentially sideline or detour people from analysing
how existing copyright laws block access and how policy changes on a societal level,
rather than the actions of individual 'good guys', are the key to improving access and
the related problems of copyright laws and ideology which are discussed elsewhere
in this draft dossier. Nor does the individualised CC approach challenge the fact that
most works are produced by employees, not self-employed persons, and hence are
usually owned by their employees. Nor does it confront the fact that many creators
(e.g. most musicians, most academic authors) may be required, because of unequal
bargaining power, to assign copyright in their own work to a record company or
publisher as a condition of getting their work produced or published.

In his own writings, Larry Lessig does not take a critical stance towards copyright
itself and he argues that developed copyright systems are close to a pre-requisite for
cultural production. He writes: "Copyright is a critical part of the process of
creativity; a great deal of creativity would not exist without the protections of the
law.... And as it (copyright) has expanded, it has expanded the opportunities for
creativity." 342 This approach denies the great amount of work that is produced
without the motivations of copyright (e.g. the work of most academics), the examples
of creative work produced across Asia and Africa (discussed in Section 3 of this
dossier), and the work of indigenous peoples.

Given the greatly reduced levels of Internet access in the South (which is the result of
many technical and economic factors) and given that most works under CC licences
are available - often solely available - on the Internet, what is the future and value of
CC licences in the South?

340 Lessig, The Future of Ideas, p. 6.

341 R. van Wendel de Joode, J. A. de Bruijn and M.J.G. van Eeten, Protecting the Virtual
Commons: Self -Organizing Open Source and Free Software Communities and Innovative
Intellectual Property Regimes, The Hague: T.M.C. Asser Press, 2003. They discuss the types of
software licences out there.

342 Lessig, Future of Ideas, pp. 107-108.

169

While there are certainly concerns with the Creative Commons licensing paradigm,
the Copy/ South working group has multiple perspectives to offer on the subject. For
example, in India, the concept of a creative commons does not resolve the problems
associated with the current copyright system. Piracy in India allows access to
knowledge and access to creative work and while the Creative Commons may
ultimately help provide this, it will not provide the necessary transition.
Furthermore, for India, copyright enforcement is characterized by massive and daily
violent raids. In such a climate, access to creative commons licensing will do little to
resolve the conflicts and a more direct approach to the issue of piracy and the
benefits of piracy for India is needed.

However, the use of Creative Commons licensing in Brazil offers an exciting
possibility to broaden access to cultural work. According to Ronaldo Lemos, the
meaning of Creative Commons in Brazil is very different from that of the United
States. In Brazil, the idea of Creative Commons is linked to a larger movement
regarding media decentralization. For Brazilians, the Creative Commons licence will
be used to 'take over the power of the catalogue' and ultimately it is hoped to end the
culture industry as it exists today in Brazil. These efforts are especially prevalent in
the Brazilian music scene. In music, parallel industries are emerging in part because
traditional music available under copyright and centrally owned by the major labels
is not working. Specifically, the centralized culture industry doesn't release Brazilian
music in part because the major labels are owned and operated by the large
multinationals that control most music world-wide and these industries are not
interested in the Brazilian market for local music. The Canto Livre movement is an
important response as outlined below.

5.10 The Canto Livre example from Brazil

Brazil has been active in staking out the territory of resistance to the intellectual
property model advocated by the United States. One exciting opportunity emerging
from Brazil is the experimentation happening between the creative commons
licensing, Brazilian music, and new models of music creation and sharing. The Canto
Livre project is one such example. Ronaldo Lemos describes the project as aiming at,
"building an open creative environment for Brazilian music, relying on the idea of
sharing and remixing, on the possibilities of collective creation, and on intellectual
generosity." 343 Canto Livre means "free singing" or "free corner" in Portuguese, but
the emphasis is on the ways in which culture are shared, not necessarily free of
charge.

According to Lemos, there is an entire parallel music industry emerging in Brazil
taking place on the fringes of the intellectual property markets. One important
example is the tecno-brega phenomenon, found in the city of Belem in the state of
Para. The tecno-brega scene turns the copyright industry upside down. Instead of the
CD being the focus of copyright protection and the final product, the tecno-brega
movement uses the CD as an advertising tool and musicians make their money from

343 Ronaldo Lemos, 'Brazil's Canto Livre Project: The Emergence of Society's Creativity/
World Information: IP City Edition, http://static.world-
information.org/infopaper/wi_ipcityedition.pdf. 2005.

170

their live concerts and creating 'real-time' CDs of the large musical dance parties
associated with the music. 344

The transformation of industry is an important paradigm for music generation and
exchange in the global south. As Lemos states, "Such 'under the radar' institutional
arrangements can play an important role in reshaping the interplay between media,
culture and the role of IP rights in the developing world. That is especially true when
one considers that in fact in the examples such as the one above, copyright is simply
not a factor. In this sort of business model, 'piracy' is either irrelevant or
economically impracticable."

Ultimately, what the tecno-brega example illustrates is that creation does and can
occur outside the copyright maximalist paradigm of the global North. Additionally,
it serves as a model for how vibrant, creative and innovative music can be once
released from the confines of the huge multinationals that tend to dominate the
international and many local music scenes.

5.11 Open access journals and open archiving initiatives

The concept of Open Access has gained popularity in the global South recently. In
September of 2005 the "Open Access for Developing Countries" international
seminar was held in Salvador Bahia, Brazil. The seminar was sponsored by the Latin
American and Caribbean Center on Health Sciences Information, the Pan American
Health Organization and the World Health Organization. The seminar resulted in the
"Salvador Declaration on Open Access: The Developing World Perspective." 345

The Declaration includes the following mandates:

1. Scientific and technological research is essential for social and economic
development.

2. Scientific communication is a crucial and inherent part of the activities of research
and development. Science advances more effectively when there is unrestricted
access to scientific information.

3. More broadly, open access enables education and use of scientific information by
the public.

4. In a world that is increasingly globalised, with science claiming to be universal,
exclusion from access to information is not acceptable. It is important that access
be considered as a universal right, independent of any region.

5. Open Access must facilitate developing countries' active participation in the
worldwide exchange of scientific information, including free access to the
heritage of scientific knowledge, effective participation in the process of
generation and dissemination of knowledge, and strengthening the coverage of
topics of direct relevance to developing countries.

344 Ibid.

345 Available at:

http://www.icml9.org/meetings/openaccess/public/documents/declaration.htm.

171

6. Developing countries already have pioneering initiatives that promote Open
Access and therefore they should play an important role in shaping Open Access
worldwide. 346

However, despite general agreement on the part of the developing world that open
access is key to scientific development, groups in the developed world have
responded by suggesting that open access is dangerous to scientific innovation and
will destroy already existing peer-reviewed journals. 347

To date Open Access scholarly communication initiatives have centred on two types
of activities, namely, statements of support for Open Access and the establishment of
digital archives or repositories. 348 These two activities are not mutually exclusive, but
one does not logically follow from the other either. For instance, statements of
support (say at a country level) cannot be read as automatically entailing the wide-
scale creation of digital archives. Similarly, the creation of digital archives might not
be accompanied by explicit statements of support from the institution developing the
archive. 349

Explicit statement of support for OA ^ 350 Digital Archive creation

NOR
Digital Archive creation ^ Explicit statement of support for OA

That said, two schools of thought exist within the Open Access scholarly
communication arena; that of the journal reform school, and the self-archiving
school, and both can be regarded as alternative models for access to academic and
scientific information, and hence, as 'open archiving initiatives'.

Open Access Journals

The central tenet for any Open Access journal is that the subscriber (reader) does not
pay to access the intellectual content of the journal. The latter is the necessary
condition for its status as an Open Access journal. Other conditions may apply but

346 Ibid.

347 David Dickson, 'Open Access Deemed 'Dangerous' by Royal Society,' SciDevNet,
November 24, 2005. Available at:

http://www.scidev.net/News/index.cfm?fuseaction=readnews&itemid=2498&language=l.
Some complained that the Royal Society did not understand the distinction between open
access and open archiving. For more on open archiving see: Leslie Chan, Barbara Kirsop, and
Subbiah Arunachalam, 'Open Access Archiving: the fast track to building research capacity in
developing countries/ Science Development Network, Available at:
http://www.scidev.net/ms/openaccess/. In response to the royal society statement, 42
fellows of the Royal Society issued a letter criticising the statement. See:
http://www.frsopenletter.org/.

348 Adrian K. Ho and Charles W. Bailey, Jr. 'Open Access Webliography.' Available at:
http://www.escholarlypub.com/cwb/oaw.htm. The authors list resources available through
the open access movement. Baily has also published 'The Open Access Bibliography:
Liberating Scholarly Literature with E-Prints and Open Access Journals/ Available at:
http://www.escholarlypub.com/oab/oab.htm

349 Digital archive is referred to here in a generic way, entailing both journals and stand alone
articles, papers (or other works) not 'wrapped' in journal format.

350 _> d en otes 'leads to'

172

may not always be invoked. One such condition, regarded as a revenue stream, is for
research authors to pay article processing fees. 351 Another condition may be the
length of time elapsed between the writing of a research piece, and making it
available via an Open Access forum. There are differing views on this, but the
generally accepted timeframe is anywhere between 'immediately' or 'six months
after' the creation of the piece. The latter 'timeframe' argument is usually invoked
with self-archiving, rather than OA journals.

From the perspective of the South, OA journals that require Article Processing fees
may defeat the purpose of the shift from the traditional journal. While the end user
may have 'free' access to the materials, global South researchers may be unable to
contribute to these journals because the processing fees could be too prohibitive. The
latter has implications for their entry into the science system.

Some OA publishers, such as BioMed Central, allow institutional memberships,
which mean that authors from member institutions are exempted from the article
processing fee. Starting in 2003, institutions, especially from developing countries,
have become members of BioMedCentral with funding support from the Open
Society Institute. However, it is doubtful that this funding can be sustained in the
long-term. Once the funding is unavailable, the access is also ended and it is unclear
how the South can sustain participation.

Self-archiving

Self-archiving takes the form of researchers making versions 352 of their research
output available in what are called institutional repositories, and/ or subject or topic-
based archives. As the names denote, institutional repositories are created by
research institutions, usually higher education institutions or science councils.
Subject/topic-based archives are usually created by discipline-based scholars for
their research community, with funding from either scholarly societies or other
interested funders. Another type of institutional repository is referred to as an ETD
(Electronic Theses and Dissertations) repository, where only the research works of
postgraduate students are made available. The term 'institutional repository' usually
denotes that academic research staff are also making their works available in that
repository, and it is thus not limited to postgraduate works.

Questions from the South

There are two key and pressing issues for the South in self-archiving their works.
One is content-oriented, the other infrastructure-oriented. The first (content-oriented)
matter has to do with publisher agreements between authors and publishers. Many
developing countries have small yet sustained scholarly publishing industries
(existing outside of the large STM publishers arena), and the extent to which small
publishers are negotiating copyright terms with developing country authors is
unclear. There is much international pressure for multinational publishers to change

351 The 'article processing fee' is analogous to the 'page fee' familiar to most actively
publishing academic authors. However, the terminology differs at an ideological level, where
the 'article processing fee' is propounded by (some) OA proponents, and the 'page fee'
denotes the model used in the paid-subscription based journal model.

352 Whether it is a pre-print, post-print, etc depends on the institution's archiving policy.

173

their copyright agreements, and for them to support OA self-archiving. The results of
the RoMEo study attest to this. It is unclear however how amenable small publishing
establishments, especially in developing countries, are to OA self-archiving.

The second (infrastructure-oriented) issue centres on the required technical skills
within a developing country to set up and maintain digital archives. These technical
skills may be quite limited given that skilled technical staff migrate to other parts of
the globe; prefer working outside of the higher education / research sector; or lack
sufficient skills to create and maintain their own digital archives using established
open source software. Another infrastructure-oriented issue frequently mentioned is
the lack of affordable bandwidth capacity in developing countries.

It cannot simply be stated as yet which model(s) is or are the best for those in the
South, since both primary models have issues which need to be addressed. However,
the concept of open access is a subtle form of resistance to copyright. The growing
popularity of open access suggests that academics are beginning to understand that
copyright can stand as a barrier to the diffusion of their academic work and it may be
the case that an open access model will be a viable alternative.

5.12 Co-ordinating activities across the South

Local organizations are forming with links to the surrounding communities, to
international NGOs and to international bodies such as WIPO. Thus, the network of
resistance grows outward and upward. The Internet and email is an important tool
for communicating strategies and linking to other groups around the world.
Meetings and conferences at all levels (local, regional, international) help bring
together people interested in similar issues and provide strategies for moving
forward. Increasingly, WIPO has become a forum for indigenous peoples to meet
and develop a common strategy. The same can be said of developing countries who
are attempting to use WIPO to help formulate their needs at the international level.

There are numerous strategies that are being employed to resist the expansion of
intellectual property. First, direct action against entities attempting to assert strong
intellectual property rights are utilized. These tactics are perhaps most visible in the
access to medicines struggle in South Africa. Public protests, marches, and acts of
civil disobedience are all part of the direct action. Global protests have also used
street theatre and humour to highlight the issues.

Second, trying to control the way intellectual property is discussed is an important
strategy. Activists successfully made access to medicine an issue of human rights
instead of piracy of intellectual property rights. The same can be said to be true about
the use of the term biopiracy and bio-colonialism, both of which turn the rhetorical
advantage to those resisting intellectual property rights.

Third, activists have developed networks that transcend local areas and integrate the
south with the north, local with global, and developed with developing. These
networks can be mobilized along many fronts to facilitate action.

174

5.13 Satire and art as resistance

The World Intellectual Property Organization published a comic book in 2001
depicting the problems with piracy and why people around the world should adhere
to copyright law. In the comic, Marco wants to be a musician but his parents are
against the idea because there is no money in music. Marco comes to understand that
in fact he could make a living as a musician if only copyright were respected.

In response to this piece of copyright ideology, the Alternative Law Center in
Bangalore, India produced its own version of the comic telling the story of the public
domain and the essential need to share and copy from each other. Such satire helps
highlight the flaws in the copyright story and expresses an alternative vision of the
world that may otherwise be difficult to see. In that way activists are able to assert
control over the way the general public perceives creativity. 353

Art is also being used in an attempt to develop public consciousness regarding
copyright and its impact. The World Information City Project is hosting public
domain art in city streets throughout Bangalore, India in an attempt to highlight the
problems of copyright. 354 The art included in this dossier is a final example of art as
resistance that can help render the problems associated with a copyright maximalist
position visible.

5.14 Co-operation in the South as part of wider intellectual property
activism

At the international level - in resistance to TRIPS and the WTO - there is significant
overlap between groups that all have an interest in seeing intellectual property law
change. For example, resisting the expansion of TRIPS brings environmental activists
and HIV-AIDS activists together over issues of patent rights. However, these forms
of cooperation do not replace the autonomy of these organizations in many other
areas. The relationship between these types of groups is perhaps better described as a
network than a partnership. However, when interests coincide within the broader IP
framework, activists work together to resist.

353 g ee: http://www.altlawforum.org/lawmedia/CC.pdf

354 See: http://world-information.org/wio/program/events/1131370562

175

SECTION 6 - CONCLUDING THE DOSSIER ... AND
LOOKING AHEAD

6.1 Some closing words

We hope that you have found the Copy/ South dossier a productive - and
provocative - reading experience. As stated in the opening sections, we do not think
we have provided all of the answers to some very complicated questions. Nor have
we even asked all of the most important questions. And these brief words of closing
do not attempt to sum up all that has been included in the dossier or try to draw
tightly-formulated, programmatic conclusions about the precise way ahead. Instead,
we mostly ask further questions and suggest some further areas of research.

More than 70 years ago, the American legal scholar Felix Cohen pointed out how
certain legal words and concepts had clouded our thinking about the reasons why
we have particular laws and, in particular, what their social purposes were supposed
to be. Such words, such as 'property rights' and 'fair value', had become what Cohen
called magic "solving words" which, when used to try to resolve social issues, often
simply became "transcendental nonsense." 355 The word 'copyright' has taken on the
same status today. As soon as they are evoked in conversation, the word and the
concept 'copyright' suddenly become some kind of purported or logical explanation
- in other words, magic "solving words" - as to why certain things in the world
cannot happen . . . and why other things do. Why should nursing sisters and public
health professionals in South Africa be required to pay royalty fees to publishers so
that they can distribute printed materials to students and patients about how to
avoid HIV/ AIDS? In the face of this shocking pandemic, why should the circulation
of such truly life-saving information be restricted? The answer: copyright laws
dictate they must pay royalty charges to a collecting society and, in any event,
without copyright, no one would have an incentive to write and produce such
materials. Or why cannot the tens of millions of visually impaired persons across the
South - more than ten million in India alone - change the format of a book or
magazine so that they, as well as sighted persons, can read it? The answer: taking
such a step is called 'reproducing the work' in copyright legalese and this is 'a right'
that only the copyright holder can exercise. Or why is a country such as Mexico
allowed to extend the term of copyright to the life of the author, plus 100 years . . .
meaning a song written today by a 20 year old composer would still be an item of
exclusive private property in the year 2166? The answer, reply copyright's
supporters, is that Article 7(6) of the Berne Convention of 1886, (now part of the
TRIPS Agreement of 1994) sets no maximum on the term or duration of copyright
and the Berne Convention is an international treaty that is basically 'unamendable'
because all of its 160 odd signatory countries members must unanimously agree
before any changes can be made.

355 PeJix s. Cohen, 'Transcendental Nonsense and the Functional Approach', 35 Columbia Law
Review 809, (1935), p. 820.

177

We in the Copy/ South group say these answers are simply "nonsense",
transcendentally and otherwise. And there is a great deal of other related nonsense
that is being said today about copyright that needs to be examined, remembering at
the same time that copyright is a 'created' legal category which is of rather recent
historical lineage, involves the state establishing a limited monopoly 'right' usually
owned by a large corporations (a fact seldom mentioned by so-called 'free marketers'
who say they believe in keeping the state out of the marketplace) and was simply
absent from most parts of the South, where more than three/ quarters of the world's
population lives, until very recently ... and still has foothold only in some urban
areas and leading commercial sectors. In other words, copyright is not something
natural or universal like the sun coming up. On this point, we would be the first to
admit that looking at a range of access and cultural issues in the South through the
lens of copyright has its own limitations and believe that future research needs to be
more inter-disciplinary.

On the economic front and the question of the supposed benefits of establishing
'mature' copyright regimes in the South, we are reminded of how the now 'reformed'
American consultant John Perkins describes the job he did for several decades on
behalf of US corporations in the South: formulate unattainable economic plans (or
"visions") and plot the way to a "glorious future" for countries such as the kingdom
of Saudi Arabia. In his current best-selling book, Confessions of an Economic Hit Man,
Perkins writes how he approached the planning of new utilities, such as new
electrical generating plants:

I always kept in mind the true objectives: maximizing payouts to U.S. firms
and making Saudi Arabia increasingly dependent on the United States. It did
not take me long to realize how closely the two went together; almost all of the
newly developed projects would require continual upgrading and servicing
and they were so highly technical as to assure the companies that originally
developed them would have to maintain and modernise them. 356

Is copyright expansion any different than expanding electrical power stations?
The determined effort by both the United States and the European Union to
ensnare the global South into the web of international copyright relations is not,
it cannot be said too often, an effort by them to either promote internal economic
growth in the South or, for example, to build markets for the music of Indian
musicians in Boston or Berlin... or certainly for anyone other than a few 'stars'
working for multi-national recording companies. On economic issues, we
consider that the analysis done for Section 2 of this dossier is only a small start
on these and other pressing questions. We would appreciate more assistance in
developing our thinking. We understand that an economic agency in Brazil has
just begun to generate economic studies on North/ South intellectual property
trade flows and we await their results with interest. As well, more work on the
economic benefits of implementing free computer software in the South is
needed. This is a technology that will not require "continuing upgrading" as
with the Microsoft ethos.

On the question of access to educational materials, which is also closely related to
financial questions and is another focus of this dossier, we note that one of the eight

356 John Perkins, Confessions of an Economic Hit Man ( London: Ebery Press, 2005) p. 87

178

Millennium Development Goals established at the United Nations Millennium
Summit in September 2000 is to achieve universal primary school education for all
girls and boys by the year 2015. It is hard to disagree with the recent speech
delivered in Mozambique by the United Kingdom's Chancellor Gordon Brown when
he said that "it is one of the world's greatest scandals that today ... two-thirds of
Africa's children never complete a primary education ... (and are) denied one of the
most basic rights of all, the right to an education. " 357 Yet children and young people
going to school at all levels, including university, require good reading and library
materials. And they will also need to be both affordable and plentiful, which raises
the copyright question. When newly-independent countries of the South asked in the
1960's that educational materials be exempted from copyright so that they could
attain wider levels of primary education in their initial phase of nation building, it
was the powerful British book publishing industry which was the most vocal - and
ultimately successful - opponent of what was called "heresy" at the time. And what
of the next decade in the South? Will work on this goal of universal primary
education be an occasion for an added 'feeding frenzy' by publishers, international
(including British) and domestic? One hesitates to believe that Gordon Brown, likely
Britain's next Prime Minister, will rein them in or ensure that education comes before
corporate profits. (A recent article by the noted African economist Samir Amin on the
Millennium Development Goals has exposed what is behind such millennium goals
and criticises the turn to privatisation and neo-liberal ideology; it is an article that
deserves attention. 358 ). Ways of writing and producing school texts and educational
materials outside copyright's strictures deserve more analysis, including the
spreading of best practice. The questionable pricing and distribution practices of
European and North American publishers also require much more empirical study
than we have been able to undertake here; as one publisher recently remarked,
"intellectual property lies at the heart of the publishing industry."

On the question of cultural production, a third focus of the dossier, many questions
require further discussion. Still, we do believe we have made a start here in looking
at a few of the critical issues. In most parts of the South, the notion of individual
'stars', of individual appropriation, and of copyrighting creative work was still an
alien concept until very recently; in many places, it still is. Is this changing and how
quickly? If only a mere handful of musicians and artists can make a living in the
North from a system that is centred on copyright, can the mass of artists from the
South expect to be treated any differently? What are the pros and cons of Creative
Commons' licences; is the analysis contained in the dossier too critical? And
although we are said to live in an increasingly globalised world, rich countries of the
global North certainly need more exposure to Southern understandings. As
commentator Martin Jacques wrote recently in a British newspaper:

. . . globalisation has brought with it a new kind of western hubris. . . (and the
view) that western values and arrangements should be those of the world;
that they are of universal application and merit. At the heart of globalisation
is a new kind of intolerance in the west towards other cultures, traditions and

357 Will Woodward, 'Chancellor pledges record UK aid package," The Guardian (London), 10
April 2006.

358 Samir Amin, 'The Millennium Development Goals: A Critique from the South', Monthly
Review, March 2006 http : / / ww w. monthlyre view, org / 0306amin. htm

179

values, less brutal than in the era of colonialism, but more comprehensive and
totalitarian. 359

Let the discussion and debate continue . . . and move to a new level. Do not hesitate to
contact the Copy/South Research Group by e-mail at contact@copysouth.org with
your thoughts, criticisms and ideas.

359 Martin Jacques, 'We are globalised, but have no real intimacy with the rest of the world',
The Guardian (London), 17 April 2006.

180

6.2 Glossary of fifty copyright terms, phrases, and copyright-
related organisations which are used in the Copy/South Dossier

Note to readers: Most capitalised words in the definitions below are defined
elsewhere in this Glossary.

Term Definition

1) Author

2) Adaptation

3) Assignment of
Copyright

4) Berne Convention

5) Copyright

6) Copyright Notice

7) Creative Commons

The person (or persons) by whom the Work is created. It is a
generic word in copyright law that includes the composer of
a musical work, the artist who draws or sculpts, and the
writer of a computer software program. The author is
sometimes the initial owner of copyright, but work created
by an employee is, for example, usually owned by her/his
employer. Copyright is capable of being transferred. See
Transfer of Copyright

The modification of a Work to create another work, for
example, adapting a novel to make a motion picture or the
modification of a work to make it suitable for different
conditions of exploitation or the translation of a Work from
one language into another language.

One of two ways to conclude a Transfer of Copyright. This is
the permanent allocation/ grant of some or all Economic
Rights to a Work. Thus, if all rights are assigned, the person
to whom the rights were so assigned becomes the owner of
the copyright.

Properly titled the Berne Convention for the Protection of
Literary and Artistic Works. It was adopted in 1886 as an
agreement to protect the rights of all Authors who are
nationals of countries that are party to the convention. (The
word "authors" has been interpreted to include owners of
copyrighted Works, such as publishers.) The current version
of the convention is the Paris Act of 1971. The Berne
Convention is also included as a part of the TRIPS
Agreement; see Article 9. The convention is administered by
the World Intellectual Property Organization (WIPO).
The right granted by law providing the owner the exclusive
rights over a Work to reproduce it, to prepare derivative
works from it (e.g. Adaptations, translations), to distribute it,
to perform it publicly (e.g. a play), and to display it publicly.
Copyright applies to so-called "original" material such as
books, articles, drawings, photographs, musical
compositions, recordings, films, and computer programs.
Copyright does not protect an abstract idea; it protects only
the concrete expression of an idea.

A notice which is placed on a work to inform others that the
work is protected by copyright. This is usually prescribed as
follows: © <name of author> <year of publication> It is not,
however, a requirement in most countries.
Creative Commons is a non-profit organisation that offers a
"flexible range of protections and freedoms" for authors and
artists. It builds on the "all rights reserved" notion of
traditional copyright to create a voluntary "some rights

181

8) DRM

9) Duration/Period of
Copyright

10) Economic rights

11) Exhaustion of Rights

12) Fair use/Fair Dealing
or Fair Practice

reserved" copyright.

Acronym for Digital Rights Management. This is an umbrella
phrase referring to "technology systems facilitating the
trusted and dynamic management of rights in any kind of
digital information, throughout its life cycle, irrespective of
how and where the digital information is distributed." This
includes any of several technical methods used to handle the
description, layering, analysis, valuation, trading and
monitoring of the rights held over a digital work in order to
protect files from unauthorised use, as well as the
management of the financial transaction processing. Digital
rights management systems are also referred to as electronic
rights management systems (ERMS), rights management
information systems (RMIs) and copyright management
systems (CMS).

The period or duration of copyright begins from the moment
when the work has been created, or, expressed in a tangible
form. The period of duration continues until a lengthy period
of time that is determined by the death of the author and
does not depend on whether the author owns the copyright.
The Berne Convention establishes a minimum of 50 years of
copyright duration after the death of the author. But this is
only a minimum and the period in different countries varies
from 50 years to 100 years after the death of the author owing
to various free trade agreements and other changes in
national legislation. Other types of copyright works, such as
films, broadcasts and applied art works, may have different
duration periods and may instead by based on the year that
the work was first produced.

The right of the owner of Copyright to prevent others from
making copies of her/his works, including the right to
authorise distribution, rental or hiring of copies of the work,
and even importation of the work. Also protected are the
right to translate and adapt a work, the rights of public
performance, broadcasting and communication of the work
to the public. These rights can be transferred to other parties.
Also referred to as Principle of First Sale. This refers to a
situation where copyright holders' rights over a certain work
are exhausted upon the first sale or transfer of ownership of a
particular copy of the work, which means that the owner of
that copy is free to dispose of that copy without seeking the
original copyright owner's further permission.
This is a limitation to the Economic rights granted under
copyright laws and permits certain acts to be carried out
without the authorisation of the copyright owner. These
generally include the use of certain limited portions of such
works for: private and research study purposes;
performance, copies or lending for educational purposes;
criticism and news reporting; incidental inclusion; copies and
lending by librarians; acts for the purposes of royal
commissions, statutory enquiries, judicial proceedings and
parliamentary purposes; recording of broadcasts for the
purposes of listening to or viewing at a more convenient time
(this is known as time shifting); producing a back up copy for
personal use of a computer program or; playing a sound
recording for a non-profit making organisation, club, or

182

13) General Agreement on
Tariffs and Trade 1947
(GATT 1947)

14) General Agreement on
Tariffs and Trade 1994
(GATT 1994)

15) Infringement (of
Copyright)

16) Intellectual Property
Rights (IPRs)

17) IFRRO

18) Literary work

19) Licensing of copyright

society. Note that the scope of these exclusions varies in
every jurisdiction.

This agreement was formed as part of the 1947 Havana
Charter that would have created the International Trade
Organization (ITO) as a sister institution to the World Bank
and the IMF. However the failure of the United States to
ratify the 1947 Havana Charter caused the ITO to be still-
born. Pending the creation of a new international institution
that would administer it, GATT 1947 was, instead, adopted
and applied by countries on a provisional basis for fifty years
from 1947 to 1994 through so-called "Protocols of Provisional
Accession." The text of GATT 1947 as it stood on 15 April
1994 was absorbed in toto directly into the text of the GATT
1994, such that any references to specific provisions in GATT
1994 would indicate provisions found in the text of GATT
1947.

This is the Uruguay Round agreement annexed to the WTO
Agreement that serves as the successor to GATT 1947. GATT
1994 covers: (i) the text of GATT 1947; (ii) various legal
instruments created by GATT 1947 member countries that
entered into force under the GATT 1947 before the entry into
force on 1 January 1995 of the WTO Agreement; (iii) various
"understandings" agreed upon by countries during the
Uruguay Round with respect to the interpretation of various
provisions in the GATT 1947; and (iv) the Marrakesh
Protocol to GATT 1994.

The unauthorised use of works protected under copyright
and a use that is not permitted by Fair Dealing/ Fair Use
provisions; it does not matter whether such unauthorised use
was deliberate or non deliberate. This constitutes a criminal
offence in an increasing number of jurisdictions with varying
penalties such as imprisonment, fines, and confiscation of the
offending material.

This is a collective term referring to all those intellectual
property rights that can be granted by the State for the
exclusive exploitation of intellectual creations. One approach
divides IPRs into two categories: those rights relating to
industrial property (patents, industrial designs and models,
marks, and geographical appellations), and those relating to
literary and artistic property (copyright).

Properly known as The International Federation of
Reproduction Rights Organisations, this consortium links
together all RROs as well as national and international
associations of rightsholders. IFRRO works to encourage the
formation of RROs worldwide, to facilitate formal and
informal agreements between its members, and to increase
public and institutional support for copyright.
Work consisting of text such as novels, poems, song lyrics
without music, catalogues reports, tables as well as
translations of such works. It also includes computer
programs.

One of two ways to conclude a Transfer of Copyright. Refers
to the authorisation to exercise some or all Economic Rights
e.g. the copying of a work, for a specific period of time and
for a specific purpose; the owner still retains ownership of
the rights. A licence is usually obtained by paying a fee to the

183

20) Marrakech Agreement/
WTO Agreement

21) Moral Rights

22) Most Favoured Nation
(MFN)

23) Musical work

24) National Treatment

(NT)

25) Neighbouring Rights

26) Open Source Software

28) Performers and
Producers Rights

29) Piracy

30) Principle of First Sale

31) Public domain

32) Reprographic Rights
Organizations (RROs)

rightsholder.

This is the main framework treaty creating the World Trade
Organisation and to which is annexed the various other
Uruguay Round agreements. It entered into force on 1
January 1995. Currently, 146 countries have ratified or
acceded to the Marrakech Agreement.

Concerned with the protection of the reputation of the
Author and are independent of Economic rights. In
particular, they refer to the Right of Attribution (or
Paternity), the Right of Integrity, and the right of association.
These rights are often, though not always, extinguished on
the death of the author.

This is one of two cornerstone principles underlying the
GATT 1994, and the TRIPS Agreement which requires that
members of those treaties do not give any one member
preferred treatment in terms of market access for goods and
services or even treatment of Intellectual Property emerging
from the different member states. This is reflected in Article I
of GATT 1994 and Article 4 of the TRIPS Agreement.
Work that consists of music plus lyrics or music only.
This is one of two cornerstone principles underlying the
GATT that requires a member state to treat domestic and
imported goods, services, service suppliers, investments, and
IPRs equally or in the same way. This is reflected in Article
III of GATT 1994, and in Article 3 of the TRIPS Agreement.
See Performers and producers rights.

The Open Source Initiative has defined open source software
as software whose licence generally allows for free
redistribution of the program and its source code. It also
permits the creation and distribution of derivative works and
modifications. In so doing, the licence must not discriminate
against any persons, fields, technology, products or other
software.

A term used to indicate rights of performers and sound
recording producers to be remunerated when their
performances and sound recordings are performed publicly
or broadcast. Also referred to as "neighbouring rights".
The term coined to describe the deliberate Infringement of
copyright on a private or commercial scale, i.e. unauthorised
copying.

See Exhaustion of Rights

This comprises the body of knowledge and innovation in
relation to which no person can establish or maintain
proprietary interests. It is considered to be part of the
common cultural and intellectual heritage of mankind.
Proprietary works can revert to the public domain where the
copyright (or patent) has been waived, or the copyright (or
patent) period has lapsed and can be used without
authorisation or permission of the rightsholder. In some
jurisdictions such as Argentina, copyrighted works do not
revert to the public domain on expiry of the protection
period, but revert to the state that granted these rights.
RROs are "collecting societies" which, acting as agents of
rightsholders, licence the reproduction of copyright-
protected material. RROs derive their authority from
contracts with national copyright holders and/ or from

184

33) Requirements for
Copyright

36) Right of Attribution

(Paternity)
35) Right of Integrity

36) RIAA

37) Section 301 action

38) Special and

differential treatment
(S&D)

39) Technical Protection
Measures (TPM)

40) Transfer of Copyright

41) Translation

42) TRIPS Agreement

legislation. RROs licences typically grant authorisations to
copy a portion of a publication, in limited numbers of copies,
for the internal use of institutional users such as university
libraries. In order to collect fees and convey authorisations
internationally, RROs enter into bilateral agreements with
each other; such agreements are based upon the principle of
National Treatment.

In most jurisdictions, to qualify for copyright protection a
work must be "original" (meaning originating from an
identifiable author or authors), exhibit a degree of labour,
skill or judgment, and be fixated in a tangible form.
The Moral Right of the author of a Work to be credited as the
author of that work.

The Moral Right to object to any distortion, mutilation or
other modification of, or other derogatory action in relation
to the work which would be prejudicial to the author's
honour or reputation.

Properly referred to as the Recording Industry Association of
America, the RIAA is the trade group that represents the U.S.
recording industry. Its members constitute among the largest
record companies in the world who create, manufacture
and/ or distribute approximately 90% of all legitimate sound
recordings produced and sold in the United States.
Section 301 of the U.S. Omnibus Trade Act of 1988 is the
principal U.S. statute for addressing alleged foreign unfair
practices affecting U.S. exports of goods or services. This
particular section of the Act gives the U.S. Trade
Representative (USTR) discretion to unilaterally enforce
sanctions in response to what the U.S. government considers
are unreasonable, unjustifiable, or discriminatory foreign
government practices that burden or restrict U.S. commerce.
This refers to the principle that would provide developing
countries with special privileges vis-a-vis compliance with
WTO or TRIPS obligations in view of their different or lower
state of economic development. This usually takes the form
of exemptions from some WTO rules or else in the form of
special trade rights (such as longer transition periods).
Refers to technological methods intended to promote the
authorized use of digital works. This is accomplished by
controlling access to, copying, distribution, performance, or
display of such works. Examples of TPM's are passwords
and cryptography technologies.

See Licensing of Copyright and Assignment of Copyright
above.

This generally means the expression of a Work in a language
other than that of the original version. Only the copyright
owner can authorise a translation to be made and published.
Properly referred to as The Agreement on Trade-Related
Aspects of Intellectual Property Rights, the TRIPS Agreement
is a Uruguay Round agreement annexed to the WTO
Agreement. It came into force in 1996 and is the most
comprehensive multilateral agreement on intellectual
property. It sets compulsory minimum standards for
intellectual property protection which countries that join the
World Trade Organisation must conform to. Under the terms
of this agreement, all WTO member-countries must re-write

185

43) TRIPS Plus (+) Agenda

44) UNCTAD

45) Universal Copyright
Convention (UCC)

46) Uruguay Round (UR)

47) Work(s)

their national laws to conform to international standards for
the protection of patents, trade marks, copyrights, industrial
designs, and trade secrets in order to reflect the minimum
standards contained in the TRIPS Agreement. The minimum
standards in TRIPS are set primarily with reference to the
Paris Convention for the Protection of Industrial Property
(Paris Convention) and the Berne Convention for the
Protection of Literary and Artistic Works (Berne
Convention); TRIPS also makes the principles of National
Treatment and Most Favoured Nation applicable to the
protection, application, and use of IPRs.

This refers to the imposition of obligations by bilateral
agreements (often in the form of Free Trade Agreements) that
impose far higher requirements for the protection of IPRs
than those encapsulated in the TRIPS Agreements. Such Free
Trade Agreements, for example, have required some
countries to extend the duration of copyright to 100 years
after the death of the author compared to a world average of
50 years after the death of the author.

Properly known as the United Nations Conference on Trade
and Development. It was established in 1964, to promote the
development-friendly integration of developing countries
into the world economy.

The UCC was created in 1952 through the United Nations
Educational Scientific Cultural Organisation (UNESCO) to
provide an international multilateral copyright treaty that
would serve as an alternative to the Berne Convention and
thereby cater to those countries not willing to sign up to the
Berne Convention, such as the United States. With the US
joining the Berne Convention in 1989 and with the creation of
the TRIPS Agreement, which incorporates Berne, the UCC
today has significantly diminished importance.
This refers to the negotiations that took place under the
auspices of GATT 1947. It was launched at Punta del Este,
Uruguay, in 1986 and concluded at Marrakesh, Morocco, in
April 1994. It resulted in the negotiation and conclusion of
the Uruguay Round agreements such as the TRIPS
Agreement and the creation of the World Trade
Organisation.

All literary, dramatic, musical or artistic material protected
by copyright laws, including but not limited to every
production in the literary, scientific and artistic domain,
whatever may be the mode or form of its expression, such as
books, pamphlets and other writings; lectures, addresses,
sermons and similar materials; dramatic or dramatic-musical
materials; choreographic materials/ performances and
entertainments; musical compositions with or without
words; films and analogous cinematographic materials;
drawings, paintings, architecture, sculpture, engraving and
lithography; photographs; works of applied art; illustrations,
maps, plans, sketches and three-dimensional works relative
to geography, topography, architecture or science. Also
includes translations, adaptations, collections, and
arrangements of music and other alterations of literary or
artistic materials which are protected without prejudice to
the copyright in the original material.

186

48) World Intellectual

Property Organization
(WIPO)

49) World Intellectual

Property Organization
Copyright Treaty
(WCT)

50) World Trade

Organization (WTO)

With headquarters in Geneva Switzerland, WIPO is one of
the 16 specialized agencies of the United Nations system of
organizations. It administers 23 international treaties
including the Berne Convention, the WIPO Copyright Treaty
(WCT), and the Rome Convention for the Protection of
Performers, Producers of Phonograms and Broadcasting
Organizations among others, dealing with different aspects
of intellectual property protection. WIPO, which currently
includes 183 nations as member states, was created in 1967 as
"an international organization dedicated to promoting the
use and protection of works of the human spirit."
The WCT is an international treaty that was negotiated in
1996 primarily to protect rightsholders' copyrights on the
Internet. It introduced anti-circumvention provisions as well
as requiring signatory countries to prohibit the alteration or
deletion of electronic rights management information, which
is information that identifies a work, its author, performer or
owner, and the terms and conditions for its use.
Located in Geneva Switzerland, this is the international
intergovernmental organization established as a result of the
Marrakech Agreement. It came into being on 1 January 1995,
and currently has 149 countries as members. It is tasked with
overseeing the implementation of the various Uruguay
Round agreements, including the TRIPS Agreement; it is a
forum for trade negotiations; it handles trade disputes
among member countries; it also monitors national trade
policies and provides technical assistance and training
primarily for developing countries.

For a fuller explanation of the above terms and other copyright-related terms and

organisations, we recommend that you check with Wikipedia, the free

encyclopaedia, at: http://en.wikipedia.org/wiki/Main_Page

187

INDEX OF THE C/S DOSSIER

A2K Initiative, See: Access to Knowledge

A2K treaty group
academic and scientific journals, 18, 26, 73,
97, 104, 105, 108, 112, 172
fees, 118, 173, 173n
and the Internet, 19, 106, 117-118
open access, 171-174
publishing, commercialisation of, 105
(See also databases, e-journal
subscriptions)
academic information in Africa, current

model for delivering, 135n
access to digital content, restricted by

vendor monitoring and protection
of content, 12, 104
Access to Knowledge A2K treaty group,
157,161-164
(See also Treaty on Access to

Knowledge (Proposed))
access to knowledge and technical
information
barriers to the use of copyrighted
material, 89-145, 153, 162
broadened by CC licensing, See:

Creative Commons
by deaf persons, 113, 132
delivery of content limited by market

forces, 11-27, 40
by disabled persons, 113, 117
in distance learning, See: distance

learning ...
free software use, See: free and open

source ...
in libraries, See: libraries
by visually impaired, See: visually
impaired
Action Aid Pakistan (NGO), 154
Action Group on Erosion, Technology and

Concentration, 154
activists (information), See: information

activists
adaptation, defined, 181
Addis Ababa University, 108
Africa

performing arts (the issue of allocating
creative roles, royalty-accruing
components), 59
'piracy' in (estimate for losses by

Northern IP rights-holders), 34
traditional societies and information
sharing, 84
African Renaissance (Organisation), 68

African Virtual University (Kenya), 96, 99
AfriTAN (TRIPS Action Network section),

154
Agreement on Trade-Related Aspects of
Intellectual Property Rights, See:
TRIPS Agreement
Algeria, 150

Kybyle people, and authorship of

music, 26
rai' music as shared traditional

knowledge (diffuse authorship),
58-59
Alternativa Bolivariana para America
Latina y El Caribe, ALBA, 156
Alternative Law Center (Bangalore, India),

175
alternative models for information sharing
(fair terms for access and use), 107,
119, 147, 157, 161-164, 162, 170-
174, 179
alternatives to the global copyright system
and intellectual property regime,
147-175
American Association of Publishers, 73
Angola, 150
anti-circumvention laws, technical

measures restricting use of digital
content, 12, 104, 117
Arab book and music industries, omitting

payments of royalties, 63
Arab countries: individual intellectual
property, an alien concept in
traditional cultures, 61-63
Argentina

copyright/ patent rights revert to state,

not to public domain, 184
free software movement, 10
Mi PC program, 165
opposition to neo-liberal trade, 156
'pirated' software in, 125, 126
reprographic rights, 43
artistic expression and monopoly

ownership, See: creativity and
invention discouraged ...
Asociacion Uruguaya para la Tutela
Organizada de los Derechos
Reprograficos, AUTOR, 43
assignment of copyright, defined, 181

(See also licensing of copyright)
Association for the Development of
Education in Africa, 96

189

assumptions about the copyright

paradigm and cultural production,
western/ northern, 11, 16, 20, 30,
34, 67-70, 162-163, 169, 179
assumptions about the dominant
Intellectual Property Rights
discourse, western/ northern, 11, 16
assumptions about US-led cultural

dominance and its controlled flow
of information, 141-145
Australia, 94, 154

aboriginal culture (heritage
authorship), 58, 154
free trade agreement on IP rights, 38, 39
author

and right of attribution, 185

and right of integrity of work and

reputation, 185
defined, 181
authors' rights, protection of, See:

protection of authors' rights
authorship, community-structured, vs.
undifferentiated western IP
system, 24, 68
authorship traditions in the global South
(origination of creativity in a
common heritage), 56-64, 154

Bahrain

free trade agreement on IP rights, 38
role of WIPO in developing national IP
programs in, 81-83
Bangladesh, 122
Bantu language group, 135
barriers to the use of copyrighted

materials in the global South, 3, 9,
19, 70, 89-145, 153, 162, 173-174
behavioural economics research on

incentives to create, 16
Berne Convention

and intellectual property rights, 186
1971 Appendix pertaining to

developing countries, 134, 139-
140, 152
Article 8 (right of translation), 133
defined, 181

education exemption, lack of, 151
as European inspired, 7, 148-149
and extension of copyright terms, 40, 92
fair use/fair dealing provisions not

mandated by, 137
history of, 139, 148-150, 152n
as inflexible treaty with 'one-size-fits-
all' orientation, 149
national treatment concept in, 48
need for its repeal, 48n

non-European countries joining, post-
1886, 150
non-European countries represented at

drafting (1886), 148-149
reservations, 149
three-step test for copyright exceptions,

49n, 131, 136, 140-141, 163
three-step test, recent extensions and
applications, 140n
BioMed Central (open access publisher),

173
Bolivarian Alternative for Latin America

and the Caribbean, ALBA, 156
book market and booksellers, 7, 15, 27n,
63, 100-101
libraries and booksellers, an uneasy
symbiosis, 101
books accessible in alternate formats for
reading impaired, proportion of,
129
Botswana, 109
Brazil, 123, 124, 125

alternatives programs to copyright law

in, 157, 170-171
Canto Livre parallel music industry in,

170-171
cell phone technology overtaking

Internet use, 10
'copy shop' raids, 73
indigenous peoples of, 155
opposition to neo-liberal trade, 156
resistance to TRIPS, 8
British and German music industry data in

context of digital technology, 78n
British authors in 19th century, 15
British Copyright Council, 152
British universities and colleges blanket
licensing provision for course
packs, 43n
Bureaux internationaux reunis pour la
protection de la propriete
intellectuelle, 80
business model to bargain for better fees,
licenses, terms, See: negotiating
power
Business Software Alliance (trade group),

165
Business Software Association

(Philippines), 126
Business week (magazine), 123

Cameroon, 108
Canada, 35, 81, 128
capital flow

attributable to copyright and IP rights,
46-47,83

190

calculating copyright-related capital

movements, 31-35
capital flow in IP industries from

periphery to the centre, 29-51
and the effects of national treatment on

global South, 50
outflow from global South, net, 48-51
(See also cultural goods & world trade;
and economics of global
copyright)
Center for Public Integrity (Washington,

DC), 27
Central American Free Trade Agreement

(CAFTA), 38, 40
Centre for Environmental Concerns

(India), NGO, 154
Centro Colombiano de Derechos
Reprograficos, CEDER, 43
Centro de Administration de Derechos
Reprograficos (Argentina),
CADRA, 43
Centro Mexicano de Protection y Fomento
de los Derechos de Autor, CeMPro,
43
Chile, 92, 94

copyright term in, 91
free trade agreement on IP rights, 38
Mi primera PC program, 165
reprographic rights, 43
China

barriers to foreign-produced films, 153
CDs, illegal entry of remaindered, 74
literary tradition of copying, disregard
for originality or the concept of
authorship, 59-60
pirate versions of CDs and videos, 30
pirate versions of software, 125
and visually impaired, 127
circumvention of technological protection,
12, 18
DeCSS DVD descrambler, 40
and Digital Millennium Copyright Act

(US), 39
encrypted software, 41
(See also: technological protection
measures)
closed standards (proprietary standards),

84, 121, 125
collecting societies (agents of rights

holders), See: reprographic rights
organisations
Colombia

copyright clearance costs restrict
academic research in, 115
Random House Colombia (publisher)
restricts lending rights, 107

reprographic rights, 43
comic art used as satire to parody

dominant copyright ideology, 175
commodification

copyright value system and, 45, 53-55
of culture and knowledge, 60, 65, 67,
69-71, 158
Commons, Creative, See: Creative

Commons
Confessions of an economic hit man (2004),

178
Congo, 151
Consumer Project on Technology, CPTech,

161
Consumers International, 161
contracts and licenses to protect vendor

databases, 12, 104
CONTU report (US), 120
copy-protected digital media and fair use

issues, 38-39
copyduty proposed on IP to sustain the

public domain, 41
copying digital works, technical protection

from, See: technological protection

measures

copying in libraries, See: photocopying,

library-related
copying, unauthorised

criminalisation of copying in the global

South, 71-76
equated with theft, 17-18, 19n, 72
in French-speaking West Africa, 108
online file sharing as, 30, 72
satire parodying dominant ideology

regarding, 175
in South African education sector

(estimates of 'piracy'), 34
of textbooks, 34, 44, 73, 91, 98, 102, 105,

132
copyleft movement, 75n, 120-121, 165
copyright

advantages and benefits of (alleged),

See: copyright incentives ...
aggressive assertion of, United States,

30
applicable to the specific expression of

an idea, not to the idea itself, 7
assignment of, 7
assignment of copyright, definition of,

181
and authorship traditions in the global

South (based on common

heritage), 56-64
capital flow attributed to, 46-47

191

and commodification rationale (trade-
related intangible property), 54-

55,61
and consumerism rationale (market

impetus to material culture), 56
and creativity, 13-27, 16, 56-64
definition of, 181
and digital material, 7-8, 13
dominant copyright and IP discourse,

assumptions, See: assumptions

about ...
duration, See: duration of copyright
and electronic rights management

(WIPO Copyright Treaty), 187
equal treatment and protection of

foreigners, nationals, 48
expansion of copyright laws and IP

rights, 7, 8, 33, 83, 89
and fair use, See: fair use/fair dealing

(fair practice latitude)
fees, royalty collection, See:

reprographic rights

organisations
as a form of protectionism, 15
and free trade agreements, See: free

trade agreements
global copyright, economics of, 29-51
history of, 7-8, 94, 139, 148-153
holders of copyright, See: rights holders
ideology of, See: assumptions about ...;

and: ideology of global

copyright
indicators of copyright-related capital

flows, 31-32
and indigenous peoples, See: traditional

knowledge
and individualism rationale

(personality theory), 53-54
industries in US (value of exports of

cultural goods), 32
infringement, See: infringement of

copyright
justification for, See: ideology of global

copyright
licensing, See: license ...; and: licensing

...; and: reprographic rights
and national treatment concept, 48-50
northern-owned aspect (the economy

of copyright in the global

North), 9
and the 'one-size-fits-all' approach,

template, 10, 149
original intent incongruent with digital

technologies, 13
originality requirement, See: originality

personality theory and, 54

piracy, See: 'piracy' of works

and profit motive, 15, 55

requirements for, defined, 185

and reward rationale (remuneration),

55-56, 77-79
rhetoric of, See: language of property

rights and status quo
as superfluous, 16
and translation(s), See: translation ...
and values of commodification,

consumerism, individualism,
reward, 53-56
as western idea imposed on global

South, 10, 52
western/northern assumptions about
the model, 52-56 (See also
assumptions about ...)
work(s) defined with respect to, 186
Copyright Act, 1710 (Gt. Brit.), See: Statute

of Anne
Copyright Act (Kenya), 99
Copyright Act (South Africa, 1978), 111
Copyright Act (UK, 2002), Visually

Impaired Persons, 130
Copyright Act (US, 1998), Digital
Millennium, 18, 19, 38, 39
Copyright Act (US, 1998), Sonny Bono

Copyright Term Extension Act, 40,
92, 141n
copyright alternatives in global South,

159-160
Copyright Clearance Center (US), 45
copyright clearance costs, See: transaction

costs
copyright clearance, obtaining permission

to copy, 43n, 98, 111-113
copyright compliance in libraries, costs
involved in, 19, 85, 90, 100, 104-
106, 118
copyright cops, 45, 102-103, 106, 113
Copyright, Designs and Patents Act (Great

Britain), 128
copyright discourse, See: language of
property rights and status quo
copyright earnings received, survey of UK

Performing Rights Society, 77-78
copyright extension. See under: duration of

copyright
copyright incentives (alleged) for the

creator, 14, 16, 45, 52-53, 55, 63, 82,
94, 147, 160, 177
copyright incentives (alleged) for the

culture industries, 15-16, 23, 31,
55-56

192

copyright incentives vs. the incentive for

providing for the public good, 160
copyright industries (creative economy),
12n, 13, 31-33, 35, 37, 41, 47, 85, 92
in Brazil, 170

world trade in cultural goods, 31-35
copyright infringement, See: infringement

of copyright
Copyright Licensing Agency (UK), 43n
Copyright Licensing and Administration

Society of Singapore, CLASS, 43
copyright lobby, 17, 36, 40
copyright notice, defined, 181
copyright paradigm, ideology of, See:
assumptions about ...; and:
ideology of global ...
copyright policy

changes on individual level vs. societal

level, 169
international and national role of WIPO

on, 81-87
policy-setting centres: 'Quad' centres of
Canada/ European
Community/Japan/US, 81
of United States, 34-41
copyright protection for music CDs in

Brazil as form of creative commons
licensing, 170-171
copyright protection for software code,

119-121
copyright protection needed for non-
economic intentions (benefits other
than profit-based), 15
copyright protection schemes of Creative
Commons licensing, See: Creative
Commons
copyright protest (direct action)
Bangalore, India, 175
satire and art (parodying dominant

ideology), 175
South Africa, 174
Taipei, Taiwan, 93
copyright reform

A2K Initiative on WIPO Copyright
Treaty reform, 157, 161-164
detoured by focus on Creative

Commons licensing approach,
168-170
to reduce the threat to free speech, 17-

18
to reduce the threat to scientific method
and scholarly communication,
18-19
to reduce the threat to the creative
process, 19

Treaty on Access to Knowledge
(Proposed), 161-162
copyright resistance from the global

South, 147-175. See also resistance
to...
copyright restrictions, 90-141

to artistic expression and diversity, 21,

62, 64
Berne Convention restrictions, test, See:

Berne Convention
on consumers' access to entertainment,

73
of digital content providers on libraries,

19
of Digital Millennium Copyright Act

(US), 18-19, 38-39
extended, 7-8, 40, 49, 186
'fair use' exemptions, See: fair use/fair

dealing (exemptions)
impacting rural learning centres of

South Africa, 109-111
limitations and exceptions, special and
differential treatment, 49, 130n,
163
limitations and exceptions strictly
controlled by laws, 136, 140
Most Favoured Nation restriction on

IPR preferential treatment, 184
property-like, 7, 136
on public discourse and international
exchange of ideas and opinions,
21-22
in TRIPS Agreement, 36
United Kingdom legislation on, 128
to unrestricted free flow of information,
41, 90, 142, 171
copyright rhetoric, See: language of

property rights and status quo
Copyright Society of Malawi, COSOMA,

43
copyright, term of, See: duration of

copyright
Copyright Treaty (WIPO), See: WIPO
Treaty (electronic rights
management)
Copyright4Innovation (group), 121
copyrighted materials, barriers to use of,

89-145, 119-121
Copy/ South Research Group
contacting, e-mail address, 180
origins of dossier, workshop, 4
Costa Rica, 92

costs, transaction (compliance, copyright
clearance, delivery), See:
transaction costs
Cote d'lvoire, 92

193

course packs, ad hoc study materials,

improvised textbooks, 43, 43n, 98,
111-113, 138
Creative Commons

the commons as cultural content,
protecting it from
commodification, 69
defined, 167, 181
language of property rights, utilized to

protect the commons, 69
licensing scheme/ paradigm, 119, 158n,

162, 167-171, 179
pros and cons of CC licenses in global

South, 168-170
virtual commons, 169n
creative economy, See: copyright

industries
creative work vs. formulaic work (affected
by privatisation of IP channels of
distribution), 19-27
creativity, copyright not a precondition of,

63
creativity and invention discouraged by
privatisation and monopolisation,
13-27, 19-20
creativity as community authorship

(origins in a common heritage, in
traditional knowledge), 56-64
creator, definition of, 14n
creators, categories of, 14
Cuba, 118, 150, 151, 156

musicians' IP rights in, 25
cultural conglomerates and global

marketing, 79, 153
cultural goods and world trade, 31-35
capital flow attributed to IP rights, 46-

47
case study of South Africa (data on

capital flow), 46-47
and commodification rationale for

copyright, 54-55
commodities homogenised by national

treatment concept, 49-50
indicators on culture relative to

development, lack of data, 31
percentage of imports by developing

countries, 32
'piracy', unsubstantiated figures for

losses due to, 33
proportion of world trade, 32
(See also capital flow; economics...;
national treatment...)
cultural heritage, common, See: traditional
knowledge

cultural imperialism, 8, 53n, 68n, 74, 90,
142-145, 143, 150n, 152-153, 153n,
156n

cultural theft, 65, 69, 69n, 154, 155, 158-159

culture of sharing vs. culture of
monopolisation, 8, 147

DALRO (South Africa), See: Dramatic,
Artistic and Literary Rights
Organisation
databases, e-journal subscriptions

archival permanency lacking in, 106-

107, 173-174
and copyright management systems,

See: digital rights ...
differential subscription rates for, 19
downloading and reproducing from,

104, 113, 118
institutional repositories (open, Web-
based archives), 173-174
license alteration prohibited, 187
open access journals and open

archiving initiatives, 171-174
rapid privatisation of educational
research into databases, 97
(See also academic and scientific
journals)
Declaration of Shamans on Intellectual

Property (2001), 159
DeCSS DVD descrambler, 40
Democratic Republic of the Congo, 122
developing countries, See: global South
Development Gateway, 118-119
digital archives or repositories

(article/ paper-level or journal-
level), 172-174
dissertation/ thesis, 173
Digital Book Mobile (Gulu, Uganda), 107-

108
Digital Millennium Copyright Act (US),
18-19,38-39
fair use copying, prevention of, 38
as more restrictive than WIPO
Copyright Treaty, 38
digital rights management systems, 45,
113,187
DRM defined, 182
DRMs as flawed Internet copyright

tollgates, 116-117
as inappropriate for developing

countries, 117
'page fee' (DRM) vs. open access 'article

processing fee', 173n
and protection technology, See:

technological protection ...

194

and Sony BMG Music Entertainment,

116-117
for subscription-based databases, 97
disabled or visually impaired negatively
affected by copyright. See under:
access to knowledge
distance learning courses, 89, 95-98
broadcast and online programmes

(copyright hurdles), 99
Sub-Saharan Africa, 99-100
DMCA liabilities, See; Digital Millennium

Copyright Act (US)
Dominican Republic, 92
dossier, defined, 4
doubting copyright, reasons for, See:

resistance to copyright
downloading and reproducing files. See
under: databases ...; and see: music
files ...
Dramatic, Artistic and Literary Rights
Organisation (South Africa),
DALRO, 41, 44, 112-114
duration of copyright
author + 14 years, 13
author + 50 years, 40, 92
author + 70 years, 40, 91-92
author + 99 years, 92
author + 100 years, 49, 50, 92, 186
cost estimates of term extension, 94
defined, 182
extended (term extension), 8, 40, 92,

141n, 186
legal basics of copyright term question,

92-93
multinationals as main beneficiaries of,

93-94
resistance to extension of term, 93
as tax on readers, 93
world average for duration, 186

East Africa, the Masai tradition of

storytelling as heritage authorship,

58
economic rights of copyright owner
defined, 182

limited by fair use exclusions, 182-183
economics of copyright 'piracy', statistics

on, 75-76
economics of global copyright, 29-51, 79.

See also capital flow; and: cultural

goods & world trade
The Economist (London), on reduction of

copyright terms, 13, 17
Ecuador, 92

educational materials, accessibility and

reproduction of, 11, 73, 85, 89, 98,

117, 131, 139, 178-179
e-journal subscriptions, databases, See:

databases, e-journal subscriptions
El Salvador, 92
Electronic Frontier Foundation, 18, 117,

122
Electronic Information for Libraries,

eIFL.net, 107
electronic rights management systems,

ERMS, See: digital rights

management systems
electronic theses and dissertations,

repositories for, 173
Elsevier Group, 109
essentialist approach (stasis in traditional

knowledge), avoidance of, 67-68
Ethiopia, 96, 108
European Communities on the

enforcement of intellectual

property rights, 71
European languages, privileging of, 134
exchange of technical information, See:

technology transfer
exchange value vs. use value, 70
exemption, latitude, and the concept of

'fair use', See: fair use/fair dealing

exhaustion of rights of copyright owner
(Principle of First Sale), defined,

182

Fair Trade Commission (Korea), 124
fair use/fair dealing (copyright

exemptions), 7, 19, 39, 91, 98, 105,
108, 111, 137-139
and Berne Convention provisions, 137
defined, 182-183
denied in Digital Millennium

Copyright Act, 38
northern standard misapplied to global

South, 138-139
in West Africa, 108
Federal Reserve Bank of Minneapolis (US),

15-16
fees and payments, license, See:

reprographic rights organisations
fees waived, See: fair use/ fair dealing

(copyright exemptions)
FLOSS movement (free/libre and open-
source software), 119-121
flow of information, transfer and

distribution of knowledge, See:
knowledge transfer

195

folklore and oral traditions, See: traditional

knowledge
Force Foundation, 130
Foresight Institute (Foresight Nanotech

Institute), 165
France, droit moral protected by copyright,

54
free and open source software

movements, 117, 119, 121-125, 157,
164-167, 169n, 174, 184
copyleft approach, See: copyleft

movement
GPL approach, See: General Public
License
Free Curricula Centre, 99
free speech

dependent on full disclosure, access to

databases, 12
threats to, copy and content protection
as, 18
free trade agreements, 8, 9, 30, 34, 36-41,
38n, 93, 156, 186
requiring copyright duration of author

+ 100 years, 186
(See also TRIPS Agreement)
Free Trade of the Americas Agreement,

FTAA, 155, 156
French-speaking West Africa, 108

GATT, See: General Agreement on Tariffs

and Trade
Gene Campaign (Indian advocacy group),

154
General Agreement on Tariffs and Trade

1947, summarized, 183
General Agreement on Tariffs and Trade
1994
Article 1 on Most Favoured Nation

principle, 184
Article 3 on musical work, 184
and Marrakesh Protocol to GATT 1994,

183
precursor agency to World Trade

Organization, 34, 81
summarized, 183

and Uruguay Round agreements, 183
General Public License (GPL free software
license)
GNU GPL, 121, 165
GNU/ Linux operating system, 166
resists copyright from within, 147
genetically modified organisms (GMOs),

activists against, 156
Ghana, 92, 96, 129
book prices in, 44

performing arts in, multiple authorship

of, 59n
global North (developed countries)

activists in (those critiquing copyright

laws), 10
and copyright problems, 4
economic conditions and trade-related

IP rights, 30-44
exporters of information capital as

monopoly rent, 29
one-way flow of knowledge, to South,

89-90, 143, 153, 164
global South (developing countries)
access to knowledge, See: access to

knowledge ...
authorship traditions based on

common heritage, 56-64
barriers to use of copyrighted materials

in, 89-145
copyright as western idea being

imposed on, 10, 49-50, 52
defined, 4
as importers of information capital as

monopoly rent, 29
national treatment concept detrimental

to, 49-50
and net outflow of capital, See: capital

flow
protection of local cultures, See:

traditional knowledge
resistance to global copyright system,

147-175
and shortage of books in libraries, 12
special and differential treatment of,

185
traditional knowledge in, See:

traditional knowledge
and UNCTAD (development friendly

integration), 186
globalisation

capital flow from periphery to the

centre, 29-51
as copyright-protected single culture, 4
imposition of a global intellectual

property-oriented policy, 35, 52,

178
and western cultural conglomerates, 79,

153
group rights, 70, 158, 159

Haiti, 149
harmonisation of IP rules

resistance to, See: resistance to

harmonisation of IP rules

and TRIPS Agreement, 17, 35-37

to US standards, 30

196

WIPO's role in promoting, 81-87
Havana Charter, 183
Higher Education Copying Accord

(United Kingdom), HECA, 43n
history of copyright conventions and

assumptions, 7-8, 94, 139, 148-153

ideology of global copyright, 52-88, 90
A2K reform efforts tied to Northern

values and assumptions, 163-

164
advantages and benefits alleged, See:

copyright incentives
assumptions behind copyright

paradigm, 8, 9, 52-56, 89, 129,

133, 139, 148-153, 163, 168, 178
central place of individual author rights

& prerogatives, 54
copyright as a form of protectionism, 15
critique of, See: New World Information

and Communication Order
as cultural imperialism, See: cultural

imperialism
economic incentive of copyright, See:

copyright incentives
and economics of copyright 'piracy', 75
equal treatment (foreign and domestic),

See: national treatment
fair use, 7, 182-183
influence of Creative Commons

licenses on, 168
information policy of US, 12, 29-30, 34-

41, 37, 142-144, 178
privatisation, 8-27, 52
satire of, 175
as western idea imposed on global

South, 10, 52
IFRRO, See: International Federation of

Reproduction Rights Organisations
illiteracy and copyright laws, 4
incentives to create, spurs to innovation,
See: copyright incentives (alleged)

India, 124, 127, 135

benefits and problems of 'piracy' in, 170

book 'piracy' in, 73

'copy shop' raid, Mumbai, 73

pirated software in, 75-76

resistance to TRIPS, 8
indigenous peoples, heritage-based

traditional knowledge systems, See:
traditional knowledge
Indonesia, 85

book 'piracy' in, 73

customary law does not accommodate
IP law nor the concept of
intangible goods, 61
inefficiency argument (reformist writings

on IP), 15
information activists, 3, 8, 10, 87, 123n, 147,

148
information age, 7
information and its technology as a

commodity, concept of, 29

information capital, control of access to, 13

Information in the nonaligned countries

(Tunis, 1976), international

symposium report, 152-153

information policy of the United States, 12,

34-41
infringement of copyright

defined as unauthorized use of

protected works, 183
financial loss from (authors vs.

corporations), 75
format conversion or transcription as,

106, 128-133
infringement defined, 183
as injury, 54

by library users, 102-103
as 'piracy', definition, 184
institutional repositories (open Web-based
archives of scholarly material),
173-174
intellectual property rights

advantages and benefits of, alleged, 8,

15-17, 31, 44, 46
alien concept in traditional cultures

with shared authorship, 56-64,
69-70
alternatives to international dimensions

of IP, 147-175
assumptions within the dominant IP
discourse, 11, 16, 53-76, 67-69,
133-134, 141-145, 168
as basic, justified in John Locke's theory

of natural law, 53-54
capital flow attributed to, 46-47
commodification of (creative work

dissociated from its producer),
55,67
commodification of knowledge, See:

traditional knowledge
and corporate rights holders, 23-24, 27
Declaration of Shamans on (2001), 159
digital 'piracy', unsubstantiated data

on, 33-34
disputed, subject to litigation, 25-26
epicentres of IP law: Brussels, Geneva,
New York, Washington (DC), 55

197

expansion of, 8, 33, 83

gains (annual capital outflow) of US

from cultural products, 32-33
global IP-oriented policy and

enforcement as an imposition,

35-37, 52
harmonisation of local rules to global,

See: harmonisation ...
as incentive or deterrent to creativity

and inventiveness, 11, 13-16, 19,

82-83, 115, 160
and investment in developing

countries, 47
layers of IP protection additional to

copyright, 104
license fees, payments, See:

reprographic rights

organisations
monopolisation of IP rights, 19-27, 90
payments for IP rights, See:

reprographic rights

organisations
presumed causal relationship with

socioeconomic development,

16-17
and privatising of a common cultural

heritage, See: privatisation
proprietary values and the western

property model, 71
protection shifted in favour of

commercial rights holders, 17
regulated by payment of rent, 29
restrict cultural diversity and exchange,

21-22
rigorous enforcement in United States,

30
and software, See: proprietary software
as trade-related, 30
and traditional knowledge, traditional

music, See: traditional ...
and TRIPS Agreement (summary), 185-

186
World Intellectual Property

Organization role in promotion

of, 80-81
International Commission for the Study of
Communication Problems. See
under: UNESCO
International Confederation of Societies of
Authors and Composers, CISAC,
44
international crisis of copyright (1960s), 3,

89, 139, 152
International Federation of Library
Associations, 103

International Federation of Reproduction
Rights Organisations, 42
on benefits of their services, 44, 45
IFRRO described, 183
International Information Order, New, See:
New World Information and
Communication Order
International Intellectual Property
Alliance, 33
estimated levels of copyright 'piracy' ,
34
International Publishers Association.

Congress (25th, 1996), 42
International Seminar on Open Access for
Developing Countries (Salvador,
Brasil, 2005), 171
International Trade Organization

(Proposed), as sister institution to
World Bank and IMF, 183
Internet

barriers to Internet access in global

South, 116-119
copyright tollgates and flawed digital
rights management systems,
116-118
Google Scholar, conditional access in,

118
library access, use and storage of

downloaded text in proprietary
format, 105-106, 118
and World Intellectual Property

Organization Copyright Treaty,
187
Internet service providers and copyright

infringement issues, 39
IP Justice (advocacy group), 87
Iran, 118
Italy, 4

Jamaica, reprographic rights, 43
Jamaican Copyright Licensing Agency,

JAMCOPY,43
Japan, 149

copyright law as a foreign concept

(cultural differences regarding
IP rights), 60
Jordan free trade agreement on domestic

patents, 38
journals

academic and scientific, See: academic

and scientific journals
open access, See: open access journals

Kenya, 95, 97, 116

access to Internet, 10

Copyright Act, fair use exemption, 98

198

reprographic rights, 43
knowledge, commodification of, 45, 105
knowledge, traditional, in global South
(based on common heritage), See:
traditional knowledge
knowledge transfer, distribution

barriers to use of copyrighted materials,

89-145
effect of fees and license rules of
academic journals on, 105
more open paradigm for, 41
one-way flow of knowledge, North to

South, 90, 143
unrestricted free flow of information,
41, 90, 142, 171
Korea, 124

language of copyright reform efforts, A2K
treaty language, 'pro-owner' legal
narratives, 163
language of intellectual property

appropriated by indigenous
groups, 69, 148
language of open societies, 157, 172n
language of 'piracy' and 'infringement'

applied to reproduced works, 8, 72,
128, 184
language of property rights and status

quo, 11, 53-76, 67-70, 133-134, 145,
148, 168, 177
languages, European (privileging of

European languages), 134-136
languages, non-dominant, and

translation/ transcription issues, 89,
97, 99, 132-136, 140
'adaptation' as translation, 181
translation, defined, 185
Latin American and Caribbean Center on

Health Sciences Information, 171
Lebanon, 124-125
Liberia, 149
libraries

academic and scientific journals, See:

academic and scientific journals
access restrictions, fees, on use of

databases, 104
and booksellers, an uneasy symbiosis,

101
costs due to copyright compliance, 19,

85, 90, 100, 105-106, 118
digital content provider restrictions on
resource sharing as disincentive
to enquiry, 19
and electronic publishing, See:
databases, e-journal
subscriptions

and interlibrary loan, 18
open access journals and open

archiving initiatives, 171-174
photocopying in, See: photocopying ...
and public lending rights (of authors),

100-102
services and efficiency hindered by

copyright and IP rights, 100-108
and shortage of books in global South,

12
subscription-based databases, e-

journals, See: databases, e-

journal subscriptions
user costs for commercial document

delivery, 19
and vendor content management of

digital material, 12, 104
library consortia, networks, 18, 105-107
negotiating vendor licenses on fair

terms, 106-107
license agreements

'all rights reserved' vs. 'some rights

reserved' and degree of access,

168
alternative models for information

sharing, 107, 119, 147, 157, 161-

164, 167-174, 179, 181
blanket (educational institutions and

RROs), 43, 91, 105, 113-114
Creative Commons licenses/ licensing,

119, 158n, 162, 167-170, 179
a library consortial model (fair terms

for access and use), 107
transactional (per-copy cost-basis), 112-

114
licenses, vendor, 12, 107
licensing of copyright, defined, 183

(See also assignment of copyright)
Linux (open source operating system), 76,

125, 165, 166, 166n
literary work, defined, 183

Madagascar, 109
Malawi, 139

reprographic rights, 43
Malaysia

'copy shop' raids, 73
university on-campus copying of
textbooks, 73
Maldives, 109
Many voices, one world (1980), UNESCO

report, 153
Marrakech Agreement creates the World

Trade Organisation, 184, 187
Marrakesh Protocol to GATT 1994, 183
Mauritius, 109

199

McBride Commission. See under: UNESCO
media conglomerates, control of content
and channels of distribution, 23,
26-27, 64, 153
media conglomerates, effect of

consolidation and takeovers on
cultural and scholarly production,
26,64
Mexico, 93, 123, 139
book 'piracy' in, 73
copyright duration in, 49, 50, 92
pirate versions of CDs and videos, 30
reprographic rights, 43
Microsoft, 75-76, 120-121, 123-126, 163-

166, 178
Microsoft Partners in Learning (global

iniciative), 165
Middle East, 'piracy' in (estimate for losses

by Northern IP rights-holders), 33
Millennium Development Goals (United

Nations), 179
MIT OpenCourseWare project, 119
model licensing agreement (fair terms for

access and use), 107
models for information sharing,

alternative, 107, 119, 147, 170-174
A2K (Access to Knowledge Treaty

Group), 157, 161-164
Creative Commons approach, 119, 157,
162, 167-170, 179, 181
moral philosophy, consequences of

information flow, North to South,
from the viewpoint of, 90n
moral rights (of authors)
defined, 184
droit d'auteur copyright system in West

Africa, 108
droit moral (France), 54
right of author to be credited (right of

attribution), 185
right of integrity of work and author's

reputation, 185
translations requiring approval of
author, 134
Morocco free trade agreement on IP rights,

38
Most Favoured Nation principle defined,

184
Motion Picture Association of America, 33,

92
Mozambique, 92, 109, 179
MP3 downloads and decline in sales of

record industry, 102n
multinational corporations, 3, 8, 26, 47, 53,
75, 81, 86, 107, 120, 125, 170-173,
178

multinational corporations as beneficiaries

of copyright term extension, 93
multinational record companies, 53, 78, 86,

178
music and sound-based collecting

societies. See under: reprographic

rights organisations
music files, downloading of, 18, 33, 101-

102, 102n
music industry in Brazil: Canto Livre

project, tecno-brega scene, 170-171
musical work
defined, 184

marketing and promotion of, 22-23
mutual aid and cultural sharing vs.

proprietary values and IP laws, 71
mutual aid model, 71, 160-161, 160n

Nashville in Africa project (World Bank),

85
National Commission on New

Technological Uses of Copyrighted
Works (US), 120
National Encounter of Pajes (Brazil, 1999),

155, 158
National Library of Uganda, 107-108
National Research and Education

Networks, NRENs (regional
networks), 119
national RROs as enforcement agencies
(and an artificial model for global
South), 42-45
national treatment concept, 9, 48-51
defined, 184

and differential treatment, 49
provisions of the Berne Convention,

133
reproduces substantive inequality, 50
and RROs, 184-185
and TRIPS Agreement, 185-186
[See also cultural goods and world
trade)
negotiating power, using a business model
to negotiate for better fees, licenses,
terms, 78, 104, 106-107, 113, 170
neighboring rights, See: performers and

producers rights
New World Information and

Communication Order, 147, 148,
152-153, 153n
reactions of US, UK

governments/ media to
NWICO, 153
New Zealand, 128, 154

Maori cultural and intellectual heritage,
154

200

Nicaragua, 92
Nigeria, 92, 135

reprographic rights, 43

Yoruba art, 55
Nonaligned Movement, 152
northern (western) countries, See: global
North (developed countries)

Oman, free trade agreement on IP rights,

38
one-way flow of copyrighted works from
the North to users in the global
South, 89-90, 143, 153, 164
open access concept, 171-172, 174
open access journal article processing fees

(pre-print, post-print), 173, 173n
open access journals and open archiving

initiatives, 171-174
open content licensing terms, See: Creative

Commons
open courseware (MIT project), 119
Open Society Institute, 162n, 173
open source software
concept, 165, 167n
as defined by Open Source Initiative,

184
movement, 117, 119, 121-125, 157, 164-

167, 169n, 174, 184
standards, open and compatible, 125
oral traditions and folklore, See: traditional

knowledge
originality concept and diffuse authorship:
the issue of traditional or shared
knowledge, 56-64, 66
originality defined for purpose of

copyright, 185
Oxford University Press, 140

Pakistan

book 'piracy' in, 73

confiscations of Pakistani DVDs in the

UK, 72
'copy shop' raids, 73
traditional knowledge (authorship)
revealed in Peshawar
storytelling, 57
Pan American Health Organization, 171
Paraguay, 92, 156

Paris Convention (Protection of Industrial
Property), and TRIPS Agreement,
186
Partners in Learning (Microsoft global

iniciative), 165
payments attributable to IP licenses and
fees, See: reprographic rights
organisations

PEN Translation Prize, 136

performers and producers rights, defined,

184
Performing Right Society (UK), 77
Permanent Forum on Indigenous Issues

(United Nations), 154
Peru, 92
Peshawar (Pakistan), traditional

knowledge in, 57
Philippines, 139
book 'piracy' in, 73
'copy shop' raids, 73
'pirated' software in, 126
photocopying charges in Nairobi (Kenya),

98n
photocopying era of RROs, 45
photocopying, library-related, 34, 44, 102,

105, 106, 115
'piracy' of works

criminalisation of copying in the global

South, 71-76
defined, 71-72, 184

intellectual property laws as a form of
'piracy' from 'heritage of
mankind', 148
'lost sales' argument of publishers, 19,

30, 33, 106
in music recording industry (file

sharing), 30
software, 75, 125-127
'top ten' countries for book 'piracy 1 , 73
in the United States (19th century), 7
politics of global copyright, 147-175

'piracy' as a kind of political statement,

76
resistance to copyright, IP rules, See:
resistance to ...
Popular PC Project (Brasil: computador

popular), 124
preferential treatment of intellectual

property within member states of
GATT (MFN restriction), 184
presumptions about copyright, See:

assumptions about the copyright
paradigm ...
principle of assimilation, See: national

treatment concept
Principle of First Sale, See: Exhaustion of

Rights
Priority Watch List (Special 301 Report on
intellectual property protection), 34
privatisation

of cultural life, resistance to, 157-158
of everything cultural

(commodification of culture), 70

201

of humanity's common cultural

heritage, 11-27
ideological role of, 20
imposition of, 8-27, 52, 76-77
privileging of European languages, 134-

136
profit motive, 15
proprietary interests, reversion to public

domain, See: public domain

proprietary software, 35, 119-127, 164-166

open source and free software offer

substantial advantages over, 166
proprietary standards (closed standards),

84,121,125
proprietary values and IP laws vs. mutual

aid and cultural sharing, 71
proprietary values, need for
deconstruction of, 71
protection of authors' rights, 54, 150, 156n
in Berne Convention, See: Berne

Convention
moral rights of authors, See: moral

rights
Venezuela initiative on rights of
authors, 155-156
protection of literary and artistic works,

the Berne Convention and, 181, 186
protection of traditional/ indigenous
knowledge, See: traditional
knowledge
public discourse and international

exchange of ideas and opinions,
restricted by IP rights, 21-22
public domain

in Argentina, rights revert to state, 184

benefits of, 9

copyduty on IP proposed to sustain

public domain, 41
defined, 184
licensing schemes, See: Creative

Commons
privatisation of, 52

proprietary works reverting to, 40, 184
theory, benefits of, 9
public lending rights (of authors), 100-102
Publishers' Association of South Africa,
113

Radio Language Arts Programme (Kenya),

96
Random House Colombia (publisher), 107
rap music and the chilling effect of

potential IP rights litigation, 19
recommendations for alternatives over

proprietary software, 164-167

recommendations for alternatives to

copyright in the global South, 159-
162
recommendations/ strategies to protect
cultural heritage and traditional
knowledge, 69-71
Recording Industry Association of
America, 33
description, 185
recording industry (record companies), US

trade group defined, 185
regional trade agreements, See: free trade

agreements
Reid-Elsevier, 140
Reproduction Rights Organisation of

Kenya, KOPIKEN, 42, 43
Reproduction Rights Organisation of
Zimbabwe, ZIMCOPY, 41, 43
Reprographic Rights Organisation of

Nigeria, REPRONIG, 43
reprographic rights organisations

Arab countries disregard for IP law or

royalty payments, 61-63
blanket license schemes of RROs, 43,

43n, 105, 113, 114
collecting data about capital flows in

intellectual property, 30
copyright clearance, steep transaction

costs involved in, 45
disparity in North/ South revenue flow,

44
as fee collecting societies, agents of

rights holders, 184-185
license fees collected and distributed,

30, 31, 41-42, 44-47
license fees collected and distributed in

South Africa, 46-47
low collection activity and high

transaction cost in South, 43, 113
music and sound-based collecting

societies, 45-47, 50, 77, 85
operating with minimum personnel,
with little public presence, 4
role of RROs in global South countries,

41-45
royalty revenues compared with

photocopying costs, 44
RRO model as inappropriate for
developing world, 42-45
site licensing by institution, 113
South Africa (DALRO), 42-44, 112-114
transaction costs, fees, See: transaction

costs
and transactional licenses, See: licenses,
transactional ...
requirements for copyright defined, 185

202

resistance to copyright, 'piracy' as, 76
resistance to copyright from within

(General Public License concept),

147
resistance to copyright ideology by using

satire, parody and art, 175
resistance to copyright term extension, 93
resistance to global copyright system, 147-

175
history of, 148-153
resistance to harmonisation of IP rules in

FTA forums, 30
resistance to IP model by indigenous

groups, 67
resistance to language and rhetoric used

by proprietary IP rights interests,

174
resistance to neo-liberal trade

harmonisation, 147
resistance to proprietary software

packages, 164-167
resistance to the privatisation of cultural

life, 157-158
resistance to TRIPS Agreement, 8, 147, 157,

175
resistance to WIPO programmes and

agenda, 86-87, 161-162
restrictions, copyright, See: copyright

restrictions
reward and remuneration, earnings

discrepancies between western and

non-western cultures, 55-56, 77-79
rhetoric of copyright, See: language of

property rights and status quo
RIAA, See: Recording Industry

Association of America
right of attribution (crediting), defined as

moral right of author, 185
right of integrity (prejudicial modification

of work), defined, 185
right to education (Article 26, Universal

Declaration on Human Rights), 74
rights holders

agents, RRO licenses, See: reprographic

rights organisations
definition of, 14n
IFRRO consortium defined, 183
multinational corporations benefit from
copyright term extension, 93-94
roMEO Project study (on self -archiving),

174
Royal National Institute for the Blind

(UK), 127, 129
royalties from intellectual properties, 25
royalty payments to authors not a

precondition of creativity, 63

Rural Foundation Advancement
International, RAFI, 154

S&D principle, See: special and differential

treatment
Salvador Declaration on Open Access: The

Developing World Perspective

(2005), 171
sanctions against foreign unfair trade

practices (US statute), See: Section

301 action
satire and art, used in resistance to

dominant copyright ideology, 175
Saudi Arabia, 178
scholarly communication and scientific

method, threats to, 18-19
scholarly electronic publishing, See:

databases ...; and: open access

journals ...
scientific, technical and medical

publishing, STM, 173
Section 301 action, defined, 185
self-archiving of research output, 173
Senegal, musicians earnings and IP rights,

24
Seychelles, 109
sharing, non-commodified, as solution to

intellectual property exclusions, 70,

147,168
sharing knowledge, obligation to, 135
sharing of technical information, See:

technology transfer
Sight Savers International, 129
Singapore, 92

free trade agreement on IP rights, 38
reprographic rights, 43
single culture (globalisation), 4
social facilitation research, potential

application in field of IP discourse,

16
Sociedad de Derechos Literarios (Chile),

SADEL, 43
Societe des auteurs, compositeurs et

editeurs de musique au Liban,

SACEM, 63-64
software and hardware upgrades, expense

of, 123, 165, 178
software, free and open source, 117, 119,

121-125, 157, 164-167
software 'piracy', 75, 125-127
software, proprietary, 35, 119-127, 164-166
Sonny Bono Copyright Term Extension

Act of 1998 (US), 40, 92, 141n
Sony BMG Music Entertainment, 116-117
source code, 123, 165, 184

203

south, global, See: global South
(developing countries)
South Africa, 92, 108, 177

access to educational materials for

visually impaired persons, 131
alleged failure to enforce Northern

standards of IP protection, 34
Copyright Act (1978), 111
copyright-related payments, amounts

collected by DALRO, 46-47
direct action against entities supporting

strong IP rights, 174
estimated levels of copyright 'piracy' in,

34
languages of, 135
photocopied texts and reprographic

rights schemes, 44, 98, 138
Publishers' Association of South Africa,

113
RRO (reprographic rights

organisation), DALRO as an, 41,
44, 112-114
rural learning centres, impact of
copyright law and
photocopying rules on, 109-111
Zulu musician and IP rights, 25
South African Site Licensing Initiative,

SASLI, 113
South Korea, and university on-campus

copying of textbooks, 73
Spain, and Berne Convention, 91
special and differential treatment

regarding compliance, principle of,
130n, 136, 140, 141, 163
defined, 185
standards, open and compatible computer
software, See: open source software
standards of fair use (northern)

misapplied to global South, See:
fair use/fair dealing ...
Statute of Anne (Gt. Brit., 1710), An act for
the encouragement of learning', 11,
94
Stockholm Protocol (1967), and

developing countries, 150n, 151,
152
strategies to protect cultural heritage and

traditional knowledge, 69-71
Strathmore University, 96
Syria, 118

Taiwan

'copy shop' raids, 73

protests in Taipei (2002) against US

pressures for copyright

extension, 93

tribal songs unprotected (not 'original'),
66
Tanzania, 49, 96
Task Force on National Information Policy

(US), 12
'technical assistance' programmes to

develop national IP programs, 81-
84
technical conferences in US, trend of

moving overseas (DMCA liability),
18
technical information exchange, See:

technology transfer
technological lock on copy protected

digital media, See: circumvention
technology
technological protection measures
censoring of discussions on TPM

methodology, 18
and digital rights management systems,

See: digital rights...
digital works, 12, 104, 185
publisher use of TPM and DRM

technology to collect fees, 45
TPM defined, 185

(See also circumvention of technological
protection)
technology transfer, 29, 47, 76, 123, 126,

159, 165
textbook market in global South,

commercial, 44, 96, 97, 140
textbooks, free, 99, 110, 157n
Thailand, book 'piracy' in, 73
The Agreement on Trade-Related Aspects
of Intellectual Property Rights, See:
TRIPS Agreement
theft, cultural, 65, 69, 69n, 154, 155, 158-

159
Third World countries, 17n, 144, 150, 151
and choice of membership in Berne
Convention vs. Universal CC,
150
critique of NWICO (information and
communication order), 153
trade disputes, international, and the role
of World Trade Organization, 187
trade secret laws, 37n, 47, 119-121, 126,

186
traditional knowledge, 9, 26, 52-53, 56-71
commodification of, 67-71
as common cultural heritage, 11-27
considered as sacred, 158
and copyright protection, 59n, 65-71
creative work and collective authorship
threatened by TRIPS
Agreement, 147

204

and the culture of sharing, 8
demands of indigenous leaders for

protection of, 158-159
'heritage of mankind' claims
(commodification of
knowledge), 11-27, 66, 70, 148
indigenous groups, resistance to IP

model, 67, 69
oral storytelling, 66

oral tradition of indigenous peoples, 65
and public domain issues, 9
recommended strategies to protect, 69-

71
and TRIPS Agreement conflict with,

154
World Intellectual Property

Organization interest in, 68
traditional music, 66-67

African musicians and global

copyright, 24
jazz musicians (US), 24
Senegal musicians, earnings of, 24
South African musicians, 25
Trans-Atlantic Consumer Dialogue, 161
transaction costs

for copyright clearance and RRO

activities, 43, 112-114, 131, 163
digital/ electronic rights management
systems and, 45, 113, 182, 187
as 'discouragement cost' (against

copying), 131, 163
for document delivery, 19, 99, 115
of open access journals (processing

fees), 172-173
TRIPS Agreement compliance costs, 46
transaction licenses (per-copy cost-basis),
See: license agreements,
transactional ...
transcription of copyrighted material into
a different format (Braille, audio
tape, etc.), 106, 128-133
transfer of copyright, See: assignment of
copyright; and: licensing of
copyright
translation, defined, 185
translations, legal barriers to, 133-136
translations and the Arab book market

(royalty payment constraints), 64
translations and the South African book
market (licensing constraints), 99
Treaty on Access to Knowledge
(Proposed), 161-162
draft treaty (2004), 161n
limited perspective on access needs, 163
possible non-compliance with Berne
and TRIPS, 164

(See also Access to Knowledge A2K

treaty group)
Trinidad and Tobago Reproduction Rights

Organisation, TTRRO, 43
TRIPS Action Network, 154
TRIPS Agreement, 8, 98

aim of imposing a globally harmonised

IP system, 17, 35-37
Article 3 on musical work, 48n, 184
Article 4 on Most Favoured Nation

principle, 184
Article 9 agreement with Berne

Convention, 139
and Berne Convention ideology

reflected in, 148-149
birth, and subsequent exploitation by

Northern copyright industries,

34-36
claims of benefits, evaluating, 46
copyright compliance, high economic

cost of, 46
described (summary), 185
exemptions/ obligations of developing

countries, 185
national treatment concept in, 48
and protection of computer programs,

120
protective standards as barriers to

knowledge access, 3
resistance to, 10, 147, 154-155
as a stage in further commodification of

trade-related intellectual

property, 54
technology transfer objectives of, 123
as threat to creative work and collective

authorship of indigenous

cultures, 147
and World Trade Organization, 148,

187
(See also free trade agreements)
TRIPS Plus Agenda (higher requirements),
8, 30, 147
described (summary), 186
and economic inequalities, 8
intellectual property rights extended to

life forms, 29
Tunisia, 148

Uganda, 96, 107-108
UNCTAD

described in summary, 186

report on relationship between IP rights
and development, 16-17
UNESCO

indicators and cultural statistics, 31-32

205

International Commission for the Study
of Communication Problems
(McBride Commission), 153
sidelined from any role in copyright

policy, 81
United States withdrawal from, 153
unfair trade practice, sanctions against (US

statute), See: Section 301 action
United Kingdom

books available in accessible alternate
formats, proportion of
published, 129
British Copyright Council, 152
Copyright, Designs and Patents Act

(1988), 128n, 133n, 138n
Copyright Licensing Agency, 43n
legislation allowing copying of
copyrighted material for
visually impaired, 106
Public Lending Right in, 101
purchasing power parity with global

South countries, 122
Stockholm Protocol (1967), UK

response to, 152
threats to free speech of copyright
reformists, 18
United Nations Conference on Trade and

Development, See: UNCTAD
United Nations Millennium Summit

(2000), 179
United States Constitution, on rights-
holders monopoly vs. public
benefit, 11
United States. International Trade

Commission, on digital 'piracy'
threat to IP, 3
United States. Senate. Committee on

Foreign Relations, 12
Universal Copyright Convention, UCC
as alternative to Berne Convention, 150,

186
diminished importance of, 186
and Third World countries, 150
University of Nairobi, Faculty of Law

Library, 98
University of South Africa, 96
University of Yaounde, Medical Library,

108
Uruguay

opposing neo-liberal trade, 156
reprographic rights in, 43
Uruguay Round agreements annexed to
GATT (1994)
IP system as of 1994, 29
and the WTO Agreement, 183
Uruguay Round negotiations, 1947-94, 186

and stricter protection of intellectual
property, 12-13
U.S. Omnibus Trade Act of 1988, Section
301 (foreign unfair practices), See:
Section 301 action
US-based information/ ideology offensive,
141-145

vendor

of books, See: book market and

booksellers
definition of, 14n
licenses, 12, 107

technical protection measures of use of
digital content, 12, 104
Venezuela iniciative on the rights of

authors, 155-156
Venezuela. Servicio Autonomo de la

Propiedad Intelectual (SAPI), 155
Venezuelan alternative to Free Trade of
the America's Agreement, See:
Bolivarian Alternative
Venezuelan opposition to neo-liberal

trade, 156
Vietnam, 122

visually impaired persons, 89, 106, 113,
127-133, 141, 162-163, 177

Walt Disney Company

extension of copyright protection, 27,

40
and intellectual property rights, 26
WCT (World Intellectual Property

Organization Copyright Treaty),
See: WIPO Copyright Treaty
William and Flora Hewlett Foundation,

119
WIPO Copyright Treaty

Article 11 (legal remedies), 39
described (summary), 187
as less restrictive than Digital

Millennium Copyright Act (US),
38
and protection of computer programs,

120
reform movement (A2K), 157, 161-164
restricts alteration of electronic rights

management systems, 187
and rights holders interests, 137
work(s), defined with respect to copyright

law, 186
World Bank, 85

World Blind Union, 127, 129, 132
World Health Organization, 127, 171

206

World-Information City protest campaign
using anti-copyright art
(billboards, posters, etc.), 175
World Intellectual Property Organization
on benefits of WIPO services, 44, 45
Copyright Treaty, 1996, See: WIPO

Copyright Treaty
described (summary), 187
Development Agenda, 86-87, 161
and efforts to protect traditional

knowledge, 68
General Course on Intellectual

Property, 84
as indigenous peoples forum, 174
international treaties administered by

WIPO, 187
liberalism, purported, 85-86
objectives, role in spreading copyright

system, 80-81
resistance to its agenda, See: resistance

to WIPO...
role in developing national IP

programs in Bahrain, 81-83
role in imposing western IP model on

global South, 30, 53, 81-87

'technical assistance' programmes, 83-

84
WIPO Online Forum, 85
World Social Forum, 123
World Summit on the Information Society,

WSIS, 69
world trade and cultural statistics, See:
cultural goods and world trade
World Trade Organization
description, tasks, 187
influenced by colonial era language of

Berne Convention, 148
and intellectual property rights

protection, 185-186
and resistance groups seeking changes

to patent rights, 175
rules, exemptions from (special

treatment), 141, 185
successor agency to GATT, 34
used to impose U.S. IP standards, 30

Zambia, technology funding, 10
Zimbabwe

distance learning by electronic means,
96

reprographic rights in, 41, 43

207

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